85 N.Y.S. 735 | N.Y. App. Div. | 1904
Lead Opinion
On September 12, 1902, the defendant McGrath made a contract with the defendant McDonnell whereby McDonnell agreed to convey to McGrath certain real estate on Thirty-fifth street, between First and Second avenues, in said city, at noon on October 1, 1902, at the office of the attorney for McGrath. At the same time McGrath entered into a contract with the plaintiff by which McGrath agreed to convey to the plaintiff the Thirty-fifth street property which Was to be conveyed to him under his contract with McDonnell, to be performed at the same time and place as was the contract between McGrath and McDonnell. The plaintiff paid $500 on account of the purchase price on the execution of this contract. By this contract the defendant McGrath, in consideration of $8,000, agreed upon the condition thereafter expressed to sell and convey to the plaintiff the real property therein described. The condition was that “ This contract is made upon the condition that the said party of the first part (McGrath) shall receive the title to said premises on or before the first day of October, one thousand nine hundred and two, and if he fails to receive such title by that date, then this contract shall become null and void, and said party of the first part in - that event agrees to return the said sum of Five hundred dollars to the said party of the second part ” (plaintiff). On the first of October the parties to these two contracts met at the time and place specified, the plaintiff being represented by his attorney. The defendant McGrath was present with his attorney, and McDonnell was present with his attorney. McGrath’s attorney then handed to the plaintiff’s attorney a paper containing a list of objections to McDonnell’s title to the property-'Which he had received -from one of the title companies. Upon the receipt of these objections, the attorney who then represented the. plaintiff stated that these objections could be cured and that he thought possibly one week’s time would be sufficient to clear the title up.
The question presented is as to the effect to be given to this clause of the contract to which attention has been called, for it seems to be conceded that if that clause had not been in the contract the plaintiff would be entitled to a decree of a specific performance. This provision was evidently put in the contract to protect McGrath so that if for any reason McDonnell failed to comply with his contract McGrath should only be responsible for a return of the money paid. McGrath’s agreement to convey was upon the condition that he should receive title to the premises on or before October 1,1902, and it was expressly agreed that if he failed to receive title by that date the contract should become null and void. McGrath did not receive title on or before October 1, 1902, and thus by the express terms of the contract it became null and void. McGrath was undoubtedly bound to act in good faith. He could not arbitrarily refuse to. accept title to the property from McDonnell on the first of October ; repudiate his contract with the plaintiff, subsequently accept a conveyance from McDonnell, arid repudiate his obligation to convey to the plaintiff. McGrath was bound to accept title to the property from McDonnell if McDonnell was ready and willing to convey, and to convey it to the plaintiff if plaintiff was willing to accept the title that McDonnell was able to
It follows that the judgment must be reversed and a new trial ordered, with costs to appellant to abide event.
Van Brunt, P. J., Patterson and Hatch, JJ., concurred.
Concurrence Opinion
I concur with Mr. Justice Ingraham.
On the day specified for performance the appellant had not
I am of opinion that by virtue of the provision of the contract • quoted, time was made the essence of the contract. The plaintiff would not have béen obliged to accept title after the 1st day of October, 1902. The obligation must be mutual. If the plaintiff could not be compelled to take title subsequently the appellant cannot be compelled to give title. The plaintiff’s willingness or desire to have the matter held open and to take title later cannot alter the legal rights and obligations of the parties. Nor are the plaintiff’s rights enlarged by the fact that appellant subsequently took title from McDonnell which he might have refused. • It may be that the •appellant was not anxious to have the title perfected Or to perform
It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Van Brunt, P. J., and Hatch, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.