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