5 Barb. 91 | N.Y. Sup. Ct. | 1848
If the contract was in fact void for the defendant’s fraud, there can be no doubt of the plaintiff’s right to maintain an action to recover the value of the property delivered in part performance of it. The goods were wrongfully obtained, and he might have maintained trover for them; or, waiving the tort, he may maintain an action like this, to
I think, too, that the witness Stever was competent. It is true, that at the time he was offered, it had been proved that, as the partner of the plaintiff, he was a joint owner with him of the property for which the suit was brought. This fact might, if it should not have the effect of defeating the action altogether, have entitled him to a share of whatever might be collected of the defendant. But whatever interest he may otherwise have had was discharged by the releases executed by himself and the plaintiff. He thereby surrendered to the plaintiff all right he might have had to claim of the plaintiff a share of the recovery. The objection that he was interested, was thereby removed ; and, in respect to the guaranty, as the evidence stood when the witness was offered, he was not liable upon it at all. The guaranty is that all the wheat mentioned in the contract, when mixed, one bushel thereof with five bushels of sound and perfect wheat, shall make superfine flour. It is signed “ Camp & Stever but Mr. Monell, who drew the papers, states that “ the guaranty was signed by the plaintiff and that Stever was not present.” There is no evidence that Stever ever assented to it, and without such evidence, he probably would not be liable upon it. But, however that may be, the indemnity executed by the plaintiff restored his competency. It is not necessary, therefore, to determine whether a new trial should be granted, on the ground that the testimony of an interested witness has been received, when under the present law no objection would lie to the competency of the same witness upon a new trial.
The objection that Stever should have been joined as a plaintiff cannot be sustained. The question was determined by the
The defendant held his title to the farm he had agreed to sell to the plaintiff under a lease in perpetuity executed by James Van Rensselaer to John G. Tator. The lease contained the usual reservation ofquarter sales, and also a covenant against waste. The farm was conveyed to the defendant, by a son of John G. Tator, in the spring of 1838. In the winter following, the defendant sold the farm to Philip P. Pulver, and in the fall of 1842, Philip P. Pulver conveyed the farm back to the defendant. During the time he held the title, Philip P. Pulver had in his possession the Van Rensselaer lease. The ground upon which the plaintiff sought to avoid the contract was that the defendant had fraudulently concealed from him the fact that the farm was subject to quarter sales, and the covenant against waste. Upon the trial, Philip P. Pulver was asked by the defendant’s counsel, whether, while he had the lease in his possession, he had read the whole of it, and also whether he knew of the covenant in the lease against carrying away timber. These questions were objected to, and the testimony was excluded by the referees. The defendant’s counsel contends that the evidence was admissible to rebut the inference that because the defendant had had the lease in his possession, he must have known its contents. But I think the referees decided correctly in excluding the evidence. Whether or not Philip P. Pulver had read the lease, or knew what covenants it com tained, could have no legitimate bearing upon the question whether the defendant himself, at the time he made the contract with the plaintiff, knew of these provisions in the lease
I think, too, the referees properly admitted the testimony of Mr. Monell, by whom the contract of the 24th of October, 1842, was drawn, and also the testimony of Joseph D. Monell to show that when the contract was executed nothing was said about quarter sales, and that subsequently the plaintiff did not inquire of him for a release or any other paper relating to the quarter sales. The evidence was proper to repel any presumption which, might possibly be drawn from the other evidence in the case, that the plaintiff was not himself ignorant of this charge upon the farm when he purchased.
It was insisted, upon the trial, on the part of the' defendant, as one ground of defence, that the farm was not in fact subject to quarter sales; that reservation in the lease having been released by Yan Rensselaer, the original lessor. With a view to show that the quarter sales had not been released, and also as tending to show the defendant’s knowledge of the existence of such a charge upon the farm, when he made the sale, the plaintiff offered in evidence an agreement executed by John Watts De Peyster, who then claimed to be entitled to the reservations in the lease executed on the 27th of February, 1843, whereby, in consideration of $700 he agreed to release to the defendant “ the quarter sales and all future rights to quarter sales,” upon the farm in question. This agreement contained a clause in the following words: “ It is understood that in case of its being determined finally, that my title to such quarter sales is not good* then I am to refund the $700 without interest.” The referees properly received this evidence. It tended to rebut the position assumed by the' defendant, that the quarter sales had been released. It was also pertinent to the question whether at- the time the defendant sold the farm to the plaintiff he' knew that the lease under which hé held the farm contained such a reservation. For the same reason the testimony of De Peyster and his counsel, Mr. Livingston, was
I think, too, the defendant should have been allowed to show that he .had, during the summer or autumn of 1843, paid up the rent upon the farm. One ground upon which the plaintiff claimed to be exonerated from the performance of his contract for the purchase was, that the title had been forfeited by committing waste upon the land, in violation of the conditions of the lease. There was evidence to show that wood and timber had been occasionally cut and removed from the farm for many years, xvhereby a technical forfeiture might possibly have accrued. Such forfeiture would be waived by the landlord’s receiving rent. It was competent for the defendant to prove that, notwithstanding the violation of the provisions of the lease in this respect, the landlord had received his rent. It was relevant, as tending to show that this objection to the defendant’s title to the farm was unfounded.
Upon these grounds the report must be set aside. But upon the merits also, the case is, in my judgment, with the defendant. I have diligently, and again and again perused the entire mass of evidence presented in the case, and have been unable to find sufficient evidence to justify the referees in finding the contract of the 24th of October void, for the defendant’s fraud. There is no evidence whatever of the negotiation which resulted in the agreement for a sale and purchase of the farm, or what was said by either upon that occasion. The first information we have of the transaction, is when the parties met at Hudson to have their contract reduced to writing, and
Parker, J. dissented.