12 A.D. 604 | N.Y. App. Div. | 1897
It will be observed from the foregoing statement of facts that the referee not only allowed the liquidated damages provided for in the nontract, but.also other damages alleged to have been suffered by the plaintiff by reason of its non-fulfillment.
Ordinarily, where there is a stipulation and agreement in a contractus to: the amount of damages'that are to be paid by either parry for a breach of such contract, no question of fact can arise except as to the breach of the contract; that being found, the stipulation for liquidated damages fixes the amount of recovery,
There .are cases, however, holding that, where there has been ¡any fraud, perpetrated in the making of the contract, such fraud vitiates and renders mill and void the stipulation as to the amount <of damages to be paid upon its breach, and that the party suing for such '.breach is not confined to the amount agreed upon as liquidated
Assuming that Doty was guilty of such bad faith as would vitiate the contract, and that, therefore, the plaintiff is not confined to the amount agreed upon as fixed and liquidated damages, it is perfectly clear, it seems to me, that the plaintiff - cannot recover both the actual damages alleged to have been suffered by him by reason of the breach of contract and the amount fixed and agreed uj>on between the parties as liquidated damages for the breach thereof. The plaintiff cannot have both; if he is entitled to one, he is not entitled to the other, and, for the error of the referee in allowing both, the judgment should be reversed.
Having arrived at that conclusion, it is unnecessary to discuss the other questions in the case. It may not be amiss, however, to say that, in determining which party is in fault in not performing a contract, if it appears that the time originally fixed for its performance has been indefinitely extended by mutual consent, neither party can at any time place the other in default by demanding an immediate performance, but must fix a reasonable, definite, time in the future for such performance. (Schiffer v. Dietz, 83 N. Y. 300, and cases cited.)
The testimony of the plaintiff, that the defendant Cornell told him that the scrivener, Merrill, told him, Cornell, that Doty told him, Merrill, certain things in relation to the -title -of the- real estate in question, was hearsay and incompetent.
In determining as to whether the alleged representation of Doty to the plaintiff at the time of making the contract, that the premises were free and clear of all incumbrances, was such a false representation as to warrant a finding of bad faith, it is well to consider that, although there appears upon the records apparent liens or
The questions as to who committed the first breach of the contract in question, as to whether Doty acted in bad faith, and as to whether the defendants have tendered a good and sufficient deed under the contract, are all contested questions in this case, and, not desiring to embarrass the trial court upon a new trial in its findings of fact in relation thereto, I refrain from further consideration of them, but, for the error of the referee first discussed, the judgment should be reversed, the referee discharged and a new trial granted, ¡costs to abide the event.
All concurred.
Judgment, reversed, referee discharged and a new trial granted^ costs to abide the event.