Shaw v. Broadbent

• Decision Date: 01 December 1891
• Citation: 129 N.Y. 114
• Court: New York Court of Appeals Court of Appeals
• Parties: SOPHIA SHAW, Appellant, v. MILES BROADBENT, Respondent.

129 N.Y. 114

29 N.E. 238

SHAW

v.BROADBENT.

Court of Appeals of New York.

Dec. 1, 1891.

Appeal from supreme court, general term, fifth department.

Action by Sophia Shaw against Miles Broadbent to enforce specific performance of a parol contract to convey land. Defendant obtained judgment, which was affirmed by the general term. Plaintiff appeals. Reversed.

D. C. Barnum, for appellant.

Geo. P. Decker, for respondent.

RUGER, C. J.

This action was brought in July, 1887, to enforce the specific performance of a parol contract made by the defendant, in 1880, to convey land to plaintiff, and resulted in a judgment for the defendant, which was affirmed on appeal by the general term. The evidence was not returned in the case, and the appeal was determined upon the findings of fact alone, and from these findings the case must be determined by this court. The question is, what should have been the judgment of the court upon such facts? and it is our duty to order such a judgment as the findings of fact require. Among other things, it was found by the trial court ‘that in the year 1880 a contract was made between the parties hereto, whereby, in consideration of board furnished and to be furnished, and of other services rendered and to be rendered by plaintiff for defendant, defendant agreed to build a house on a lot owned by defendant in the village of Holley, being the west half of the premises described in plaintiff's complaint herein, and convey the same to her, to be applied at the agreed sum of $1,200 on account for board, borrowed money, and other services which defendant owed plaintiff, and plaintiff agreed to pay therefor by giving credit therefor as aforesaid,’ and ‘that under said contract defendant did build a house on said lot, and gave plaintiff possession thereof, who has ever since continued, and still continues, in possession thereof.’ The trial court refused to decree the specific performance of the contract, upon the ground that upon a previous trial between the same parties the question in controversy here had been adjudicated in favor of the defendant, thus constituting, as it was held, a bar to this action.

As appears from the findings, there had been two actions prior to the present, between the same parties, which involved, to a certain extent, the subject of this controversy, and in which judgments to a contrary effect had been rendered, and these judgments are now claimed by each of the respective parties to be decisive of the present controversy in their favor, respectively. A chronological history of the prior litigation will show the relation which each action bore to the other, and the effect of the judgments rendered upon the rights of the parties, respectively. In July, 1883, Mrs. Shaw sued Broadbent in an action in the supreme court, upon account for board, borrowed money, and services, and omitted to give credit in her complaint to the defendant for the sum of $1,200, now alleged to have been allowed as a payment on said account by the terms of the contract of purchase, above stated. She also obtained an attachment in that action, upon giving an undertaking in the sum of $250 as required by the Code, against the said defendant, and under it his property was levied upon. The attachment was vacated and set aside by the court in September, 1883, on motion of the defendant; whereupon he, in October, 1883, commenced an action on the attachment bond against Mrs. Shaw and one Wickens, the surety thereon, to recover the damages which he claimed to have suffered by reason of such attachment. In answer to that action Mrs. Shaw set up, as a second defense thereto, the contract of purchase above set forth, and demanded judgment that Broadbent should be decreed to execute and deliver to her a conveyance of such premises in accordance with the terms of his contract, and that the complaint should be dismissed, with costs. No reply seems to have been served to this answer. The action came to trial in February, 1884, before a judge at circuit, without a jury; and Mrs. Shaw's counsel, as a defense, offered to prove the contract to purchase set up as a second defense in her answer, which was objected to by Broadbent's counsel, without specifying any grounds of objection, and the evidence was excluded by the court; the judge saying: ‘I place my decision upon the ground that the complaint in that action of Mrs. Shaw against the plaintiff, the effect of it is to waive the agreement on account of the refusal of Mr. Broadbent to perform, and that she then elected to sue for the money that was due and owing.’ The trial then proceeded, and resulted in a decision in favor of the plaintiff for $100, damages and costs. The court found, among other things, in that action, that said premises were the property of and belonged to the plaintiff in that action; and also that none of the allegations of defendant's answer were sustained; and, as a conclusion of law, that plaintiff was entitled to damages, and should have judgment therefor. Judgment was duly entered, in accordance with such findings, in favor of Broadbent against Mrs. Shaw for such damages and costs in February, 1884. It was this judgment that was held in the court below to be res adjudicata upon the question as to whether a contract of sale of the property in question had been made between the plaintiff and defendant.

We will now return to the history of the action for board and services brought by the plaintiff against the defendant. In June, 1884, the plaintiff moved the court for leave to amend her complaint therein by introducing an allegation of the making of the contract to convey the house and lot in question, and giving defendant credit to the extent of $1,200 for such premises on his indebtedness to her. This motion was opposed by the defendant, but was granted by the court, without, as it says, passing upon or adjudicating the question whether such an agreement was made, and without impairing the effect of the decision and adjudication in the action on the attachment bond upon the rights of the parties. The complaint was amended in accordance with such order, and the defendant put in an answer wholly denying the allegations of the amended complaint. The action then proceeded to a trial before a referee, who, among others, made the following findings: ‘That defendant was indebted to plaintiff for board and extra services to the amount of $4,113.25, and that defendant had paid plaintiff in cash, at different times, in all $2,918.66;’ and also ‘that in the summer of 1880 an arrangement was made, by and between the parties, by which defendant built a house on a lot in Holley, and gave possession of the same to the plaintiff, and she has lived in and occupied the same, claiming it as her own, from some time in October, 1880, down to the present time, with the agreement and understanding that plaintiff should credit and allow defendant therefor on her account against him the sum of $1,200, as the price of said house and lot, and this sum must be credited to this defendant in this action in addition to the aforesaid $2,918.66 paid in cash, making in all to be allowed defendant the sum of $4,118.66, which I find defendant has paid to plaintiff on account in that action;’ and directed...