Ziehen v. Smith

CourtNew York Court of Appeals
Writing for the CourtO'BRIEN
Citation42 N.E. 1080,148 N.Y. 558
PartiesZIEHEN v. SMITH.
Decision Date25 February 1896

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.

148 N.Y. 559]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 sufficient[148 N.Y. 560]deed, 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...

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22 practice notes
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • 17 Julio 1923
    ...33 P. 848; Brimmer v. Salisbury, 140 P. 30; Parkside Realty Co. v. McDonald, 137 P. 21; Johnson v. Johnson, 44 N.W. 668; Ziehen v. Smith, 42 N.E. 1080, 148 N.Y. 558; Higgins v. Eagleton, 50 N.E. 287, 155 N.Y. 466; Carpenter v. Holcomb, 105 Mass. 280; Sleeper v. Nicholson, 87 N.E. 473; Baird......
  • Lagerloef Trading Co., Inc. v. American Paper Products Co. of Indiana, 3183.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 2 Mayo 1923
    ...45 N.W. 378; Habeler v. Rogers, 131 F. 45, 65 C.C.A. 281; Eastern Oregon Land Co. v. Moody, 198 F. 7, 119 C.C.A. 135; Ziehen v. Smith, 148 N.Y. 558, 42 N.E. 1080; Williston on Contracts, Sec. 832; Thick v. Detroit, etc., Co., 137 Mich. 708, 101 N.W. 64, 109 Am.St.Rep. 694; Pierson v. Crooks......
  • Brokaw v. Duffy,
    • United States
    • New York Court of Appeals
    • 22 Enero 1901
    ...is not necessary in order to enable him to maintain an action to recover the money paid on the contract or for damages.’ Ziehan v. Smith, 148 N. Y. 558, 562,42 N. E. 1080, and cases cited. Upon the trial there was no conflict in the evidence, and the following facts appeared without dispute......
  • Quinlan v. St. John, 958
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Octubre 1921
    ...a breach by defendant. (Leach v. Rowley, 138 Cal. 709; Arnett v. Smith, 11 N. Dak. 55; Goldman v. Willis, 72 N.Y.S. 292; Ziehen v. Smith, 148 N.Y. 558, 560; 42 M. E. 1080; McGibbon v. Schmidt, (Calif.) 155 P. 460; Townsend v. Tufts, 95 Cal. 257; Poheim v. Meyers, 9 Cal.App. 37; 98 P. 65.) I......
  • Request a trial to view additional results
22 cases
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • 17 Julio 1923
    ...33 P. 848; Brimmer v. Salisbury, 140 P. 30; Parkside Realty Co. v. McDonald, 137 P. 21; Johnson v. Johnson, 44 N.W. 668; Ziehen v. Smith, 42 N.E. 1080, 148 N.Y. 558; Higgins v. Eagleton, 50 N.E. 287, 155 N.Y. 466; Carpenter v. Holcomb, 105 Mass. 280; Sleeper v. Nicholson, 87 N.E. 473; Baird......
  • Lagerloef Trading Co., Inc. v. American Paper Products Co. of Indiana, 3183.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 2 Mayo 1923
    ...45 N.W. 378; Habeler v. Rogers, 131 F. 45, 65 C.C.A. 281; Eastern Oregon Land Co. v. Moody, 198 F. 7, 119 C.C.A. 135; Ziehen v. Smith, 148 N.Y. 558, 42 N.E. 1080; Williston on Contracts, Sec. 832; Thick v. Detroit, etc., Co., 137 Mich. 708, 101 N.W. 64, 109 Am.St.Rep. 694; Pierson v. Crooks......
  • Brokaw v. Duffy,
    • United States
    • New York Court of Appeals
    • 22 Enero 1901
    ...is not necessary in order to enable him to maintain an action to recover the money paid on the contract or for damages.’ Ziehan v. Smith, 148 N. Y. 558, 562,42 N. E. 1080, and cases cited. Upon the trial there was no conflict in the evidence, and the following facts appeared without dispute......
  • Quinlan v. St. John, 958
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Octubre 1921
    ...a breach by defendant. (Leach v. Rowley, 138 Cal. 709; Arnett v. Smith, 11 N. Dak. 55; Goldman v. Willis, 72 N.Y.S. 292; Ziehen v. Smith, 148 N.Y. 558, 560; 42 M. E. 1080; McGibbon v. Schmidt, (Calif.) 155 P. 460; Townsend v. Tufts, 95 Cal. 257; Poheim v. Meyers, 9 Cal.App. 37; 98 P. 65.) I......
  • Request a trial to view additional results

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