4 Denio 287 | N.Y. Sup. Ct. | 1847
There is no allegation in the pleadings that the plaintiff intended to do a wrong to his creditors ; nor is there any thing in the contract from which such a purpose must necessarily be inferred. We cannot say that the defendant owed a single dollar beyond the debts secured by the mortgagesand for aught that appears, the property was worth more than enough, even at a forced sale, to pay those debts; or the debts may have been due to the defendant, instead of third persons. But whoever may have been the plaintiff’s creditors, and however largely he may have been in debt, the object of the agreement seems to have been to secure, and not to prevent bidding, at the auction. The defendant agreed to bid, so long as the offers from other persons should be less than thirty thousand dollars. The plaintiff may have had a double object in entering into the contract; first, to ensure a better price than the property would otherwise be likely to bring at a forced sale ; and second, to secure a future interest in the property for the benefit of himself and his family. The limit of thirty thousand dollars was probably inserted in the contract because the defendant would not agree to bid beyond that sum.
If we assume that the plaintiff was insolvent, and that he intended the boat should be purchased at the smallest possible sum, for the purpose of securing a future interest in the property for the benefit of himself and his family, still the contract would not be void, unless its object was to prevent the defendant from bidding beyond the sum mentioned in the agreement ; and there is nothing to show that, independently of this agreement, he would have been a bidder at all. I see no ground
Now as to the pleadings. The defendant covenanted to purchase the boat at the auction “ if to be had at a sum not exceeding thirty thousand dollars." The breach alleged in the declaration is, that although the boat might have been purchased by the defendant for a sum not exceeding $30,000, he did not make the purchase. The plea is, that the defendant endeavored and attempted to pinchase the boat at the auction, and he bid the specified sum; but there were other and higher bids, and the boat was purchased by Hewett at the sum of thirty thousand three hundred dollars. To this the plaintiff replies, that the other and higher bids mentioned in the plea were made by fraud and collusion of the bidder and purchaser with the defendant, and were fraudulently and collusively procured by the defendant, with the intent and purpose on the part of the defendant unjustly and fraudulently to evade the performance of the covenant. This is a good answer to the plea. It shows that the defendant might have purchased the boat for $30,000. All the bids beyond that sum were procured by the defendant: they were, in effect, his own bids, and were made for the purpose of evading the performance of his covenant with the plaintiff.
There is no departure in pleading. The replication sustains and fortifies the declaration, by re-affirming, in effect, that the boat might have been purchased by the defendant for a sum not exceeding thirty thousand dollars.
There may be some difficulty in the plaintiff’s case when we get to the bottom of it. But so far as now appears, the defendant is in the wrong.
Judgment for the plaintiff
