Ziehen v. Smith

• Decision Date: 25 February 1896
• Parties: ZIEHEN v. SMITH.
• Court: New York Court of Appeals Court of Appeals

148 N.Y. 558

42 N.E. 1080

ZIEHEN

v.SMITH.

Court of Appeals of New York.

Feb. 25, 1896.

Appeal from supreme court, general term, Second department.

Action by William Ziehen against David J. Smith and John H. Smith for breach of contract. The complaint was dismissed on the trial, as to John H. Smith. From a judgment of the general term (26 N. Y. Supp. 419) affirming a judgment entered on a verdict for plaintiff, and an order denying a new trial (24 N. Y. Supp. 922), defendant appeals. Reversed.

VENDOR AND PURCHASER-BREACH OF CONTRACT-TENDER OF PERFORMANCE.

Plaintiff paid $500 on the execution of a contract to convey land. The contract represented that there was on the land only a mortgage of $1,000. A mortgage for $1,500 additional, of which the vendor had no knowledge, was being foreclosed when the $500 was paid; and after the date fixed for performance of such contract there was a decree of foreclosure, under which the land was afterwards sold. Held, that a tender of performance by plaintiff was necessary, to entitle him to maintain an action for breach of such contract. 26 N. Y. Supp. 419, reversed.

Garrett Z. Snider, for appellant.

Abram A. Demarest, for respondent.

O'BRIEN, J.

The plaintiff, as vendee, under an executory contract for the sale of real estate, has recovered of the defendant, the vendor, damages for a breach of the contract to convey, to the extent of that part of the purchase money paid at the execution of the contract, and for certain expenses in the examination of the title. The question presented by the record is whether the plaintiff established at the trial such a breach of the contract as entitled him to recover. By the contract, which bears date August 10, 1892, the defendant agreed to convey to the plaintiff, by good and sufficientdeed, the lands described therein, being a country hotel with some adjacent land. The plaintiff was to pay for the same the sum of $3,500, as follows: $500 down, which was paid at the time of the execution of the contract; $300 more on the 15th day of September, 1892. He was to assume an existing mortgage on the property of $1,000, and the balance, of $1,700, he was to secure by his bond and mortgage on the property, payable, with interest, one year after date. The courts below have assumed that the payment of the $300 by the plaintiff, the execution of the bond and mortgage, and the delivery of the conveyance by the defendant, were intended to be concurrent acts, and therefore the day designated by the contract for mutual performance was the 15th of September, 1892. Since no other day is mentioned in the contract for the payment of the money or the exchange of the papers, we think that this construction was just and reasonable, and in fact the only legal inference of which the language of the instrument was capable. It is not alleged or claimed that the plaintiff on that day, or at any other time, offered to perform on his part, or demanded performance on the part of the defendant; and this presents the serious question in the case, and the only obstacle to the plaintiff's recovery. It is, no doubt, the general rule that, in order to entitle a party to recover damages for the breach of an executory contract of this character, he must show performance, or tender of performance, on his part. He must show in some way that the other party is in default, in order to maintain the action, or that performance or tender has been waived. But a tender of performance on the part of the vendee is dispensed with in a case where it appears that the vendor has disabled himself from performance, or that he is on the day fixed by the contract for that purpose, for any reason, unable to perform. The judgment in this case must stand, if at all, upon the ground that on the 15th day of September, 1892, the defendant was unable to give to the plaintiff any title to the property embraced in the contract; and hence any tender of performance on the part of the plaintiff, or demand of performance on his part, was unnecessary, because, upon the facts appearing, it would be an idle or useless ceremony.

It appeared upon the trial that at the time of the execution of the contract there was another mortgage upon the premises of $1,500, which...