21 Barb. 324 | N.Y. Sup. Ct. | 1856
At the mortgage sale the defendant bid $600 for the premises: he paid in cash, at the time, $100, and gave his due-bill, payable to the owner of the mortgage, the plaintiff, for $500, the balance of his bid. And the attorneys of the plaintiff executed to him a writing, reciting the facts, and declaring that “ he [the plaintiff] is to have a title on the payment of the said note.” We have here the agreement upon which the note was given. No question is made as to the authority of the plaintiff’s attorneys to enter into the contract. Nor can any be made in this action, as the plaintiff accepted the note, and has brought an action upon it. He has thus adopted the acts of his attorneys. The plaintiff could not enforce the payment of the note until he had performed or tendered performance of the agreement, on his part. The defendant had a right, at the time of payment) to have a
We can take no notice of the exception taken by the plaintiff. The evidence objected to was admitted, and is a part of the case.
The judgment must be reversed, and a new trial had; costs to abide the event. .
Bowen, Mullett and Marvin, Justices.]