Brinkerhoff v. Olp, 35 Barb. 27

Brinkerhoff v. Olp

35 Barb. 27 | N.Y. Sup. Ct. | 1860

By the Court, Welles, J.

The objection now made that the contract was improperly admitted in evidence, is unfounded. By the contract the defendant’s testator agreed to pay the plaintiff $75 per acre for his farm. The whole *33amount of the purchase money is afterwards mentioned in the contract as $4846.87, $2000 of which was to be paid on the first day of April, 1856, upon which the plaintiff was to give a conveyance, and the defendant’s testator was to give his bond and mortgage on the farm to secure the balance of the purchase money, payable at the times mentioned in the contract. The objection is that the contract is void for uncertainty, there being in it no description of the farm agreed to be sold, excepting what is contained in the words “ his farm.” It is clear from the contract that these words refer to the plaintiff’s farm. We think it a case of latent ambiguity, which was susceptible of explanation by parol evidence. Ryerss v. Wheeler, 22 Wend. 148.)

The deed tendered under the contract was properly received in evidence. The plaintiff proved by parol evidence satisfactory to the referee, and which we think was sufficient, that the land described in the deed was the same land intended by the parties to the contract by the words “ his farm,” and the farm agreed to be sold. The $4846.87, the purchase price of the farm, would buy 64 acres and 100 rods of land at $75 per acre, within a very small fraction. The evidence of the witness Bingham of the admissions and declarations of the defendant were properly received by the referee. They were made by the defendant on the occasion of the witness calling on him to consent to a reference under the statute, and were as it seems unobjectionable.

The will of the testator was properly received in evidence. It was material to show what disposition he had made of his property, and especially of the farm in question, if any, in order to see whether the deed tendered was to the proper grantees.

The offer of the deed we think a substantial compliance with the contract, Barnabas Olp, with whom the contract was made, having died before the first of April, when the first payment was by its terms to have been made and possession of the farm given by the vendor to the purchaser. It *34was not necessary for the plaintiff to make a separate tender of the deed to all of the heirs or devisees. It was offered to the defendant, who represented the testator’s means of paying for it. An offer to the other grantees, other than the defendant, would have heen an idle ceremony, as, in contemplation of law, they had no means from the testator’s estate with which to pay for the land; and without such payment, or so much as the contract called for on the first of April, they had no right to the deed. If the defendant had paid the $2000 and procured the mortgage from the grantees in the deed for the balance of the purchase money, it would have been a compliance on the part of the estate of the testator with the contract, and the defendant would have been entitled to the deed, which, as he was one of the grantees, he would have held for himself, and as agent of the other grantees.

[Monroe General Term, March 6, 1860.

The action is for the $200 mentioned in the contract “ as fixed and settled damages”, to be paid by the party failing to perform its stipulations, and we think the plaintiff has done all in his power, and all the law required of him, in order to put the other party in default. He offered the conveyance to the defendant, who refused to receive it and perform the contract, without any objection to the form of the conveyance or to the grantees therein.

We are clearly of the opinion that the $200 provided in the contract to be paid by the failing party, was intended as liquidated damages and not as a penalty. (Mundy v. Culver, 18 Barb. 336, and cases there cited.)

The judgment should be affirmed.

Strong, Welles and Johnson, Justices.]