Schmidt v. Reed

• Decision Date: 08 March 1892
• Citation: 132 N.Y. 108,30 N.E. 373
• Parties: SCHMIDT v. REED et al.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 108

30 N.E. 373

SCHMIDT

v.REED et al.

Court of Appeals of New York,

Second Division.

March 8, 1892.

Appeal from superior court of New York city, general term.

Action by Oscar Schmidt against Charles H. Reed and Elizabeth Schmohl. From a judgment of the general term affirming a judgment for plaintiff entered at special term, defendant appeals. Affirmed.

VENDOR AND VENDEE-INCUMBRANCES-RIGHTS OF VENDEE.

1. A contract to sell land stated that a mortgage on the property, assumed by the purchaser, had five years to run when in fact it had only three. Three days before the day set for completing the purchase the vendee discovered the error, and notified the vendors that he would insist on an extension of the mortgage, and refused to extend the time of closing. Five days after the date set for closing, the vendee made a contract for the purchase of other land, and three days later the vendors tendered an extension of the mortgage and a deed to the property. Held, that the vendee was justified in refusing to complete the purchase after the time specified in the contract, and was entitled to recover from the vendors money expended about the purchase.

VENDOR AND VENDEE-INCUMBRANCES-RIGHTS OF VENDEE.

2. The vendee was not required, in lieu of the contract in respect to the mortgage, to accept security against damage by reason of the maturity of the mortgage two years earlier than represented. 9 N. Y. Supp. 705, affirmed.

William C. Reddy, for appellants.

E. Beneville, for respondent.

The other facts fully appear in the following statement by BRADLEY, J.:

The action was founded upon the alleged default of the defendants in performance of a contract made by them to sell and convey to him certain premises in the city of New York, and to recover a sum advanced by the plaintiff to the defendants upon such contract; also certain expenses incurred by him in examining the title to the property. The defendants, by way of counter-claim, alleged facts upon which they demanded specific performance of the contract. It appears that on October 18, 1888, the parties entered into an agreement whereby the defendants agreed to sell and convey the premises to the plaintiff for $34,000, payable as follows: $500 at its date; $22,500 ‘by taking said premises subject to a mortgage for that amount, [then] a lien thereon, bearing interest at 5 per cent., and having five years to run from November, 1886;’ and the balance, $11,500, in cash on closing the title; and the defendants agreed to convey the land to the plaintiff on the 15th day of November, 1888, by warranty deed, free from incumbrance, except such mortgage. It turned out that the time of maturity of the mortgage was not five years from November 1, 1886, as mentioned in the contract, but was three years from that time. This was the objection of the plaintiff to the completion of the purchase, and at the meeting of the parties, on the 15th of November, he declined to extend the time to enable the defendants to procure an extension of the time of payment of the mortgage until November, 1891, or to accept security from the plaintiff in that respect.

BRADLEY, J., ( after stating the facts.)

At the time stipulated by the contract for its performance the parties came together. The plaintiff was ready to complete the purchase, and the defendants had prepared a deed which they proposed to deliver. The plaintiff declined to accept it because he had learned that the time for the maturity of the mortgage subject to which the title was to be conveyed was two years earlier than it was represented to be by the contract. This was a mistake of the defendants, without fraud or purpose on their part to deceive the plaintiff. The effect of this provision of the contract was that the payment of the principal sum of the mortgage, without default in payment of interest, should not be enforceable within five years from November 1, 1886. And this provision could be satisfied by an instrument effectually extending until then the time of its payment. When the parties were together, on November 15, 1888, the stipulated time to complete the sale and purchase, the defendants at the time of tendering their deed also tendered to the plaintiff ample security against any possible damage by reason of the mistake in respect to time of the maturity of the mortgage, which was refused by the plaintiff. The defendants also then requested a postponement of the time of performance of the contract for a week or ten days, to enable them to obtain and deliver to the plaintiff an instrument of extension of the time of apyment of the mortgage, corresponding with that mentioned in the contract. This the plaintiff also refused to grant. On November 23d, eight days after that meeting of the parties, the defendant, having obtained it from the mortgagee, tendered to the plaintiff a written extension of the time of payment of the principal sum of the mortgage to November 1, 1891, and sufficient money to pay for recording it, with a deed of conveyance of the premises. The plaintiff refused to receive them. He had on the same day, and prior to the tender, commenced this action by service on the defendant Schmohl, of which the other defendant, when he made the tender, was not advised.

The question is whether this offer of performance at that time by the defendants constituted a defense to the action, and entitled them to specific performance. While at law the stipulated time of performance of a contract for the sale and conveyance of land is of the essence of the contract, it is not essentially so in equity, and there, when the situation of the parties and property remains unchanged, relief will not necessarily be defeated by delay. But, where there are no circumstances of acquiescence in the delay, reasonable dilligence is requisite to such relief. Edgerton v. Peckham, 11 Paige, 352;Hubbell v. Van Schoening, 49 N. Y. 326. The parties to a contract may, by its terms, make the time of performance essentially important, and...