30 A.D. 115 | N.Y. App. Div. | 1898
It is to be inferred from the record that both the plaintiff and the defendants endeavored, in good faith, to perform the contract.- Negotiations to that end were continued from April 1 to December 22, 1894, and both parties were at much trouble and expense- in the matter. . It cannot be doubted that the plaintiff was desirous of.' obtaining a deed of the farm.- He had contracted for it with a view of securing a- home; he had expended over $1,000 in permanent improvements and repairs.. During the negotiations he employed
It is true, as claimed by the learned- counsel for the respondents, •that on and after April 1,. 1894,.the time for the performance of the contract having, by consent of the parties, been extended indefinitely, the plaintiff, before electing to rescind, was compelled to give the defendants notice and a reasonable time in which to perform. (Darrow v. Cornell, 12 App. Div. 604, 607.) But I am unable to agree with his view as to -the effect of the notice of October 19, 1894, which the plaintiff served upon, the defendants. Ho more force or •effect should be given to this paper than its language warrants. In •the notice the plaintiff did not rescind the contract or refuse to perform it. He charged-the defendants with a failure' to' perform, and gave them notice. that .on. account of.' such failure he should hold them, responsible for the damages he had sustained.. It is true that the plaintiff, at the time, proposed to abandon the possession of. the premises; but by the communication'of Mr. Van Kirk of October twenty-fourth, and the answer of the plaintiff of October twenty-sixth; the parties came to an agreement as to the terms on which the plaintiff should thereafter occupy the premises. By such agreement the contract was modified so that the plaintiff should continue such occupancy as a tenant instead of a vendee in possession under the contract, and the time for the performance of the agreement was extended to December twenty-second, at noon — the agreement that the plaintiff should thereafter occupy as 'tenant evidently being only intended to .remain operative in case the defendants were unable, in the time to which the performance of the contract was extended, to tender a marketable title. The arrangement in. fact made left the contract as thus modified in full force.
And afterwards the parties continued active negotiations, up to December twenty-second, with a view of ¡ a performance of the contract. They treated, and evidently regarded, the contract as in force, as it in- fact was, with the modification above referred to.
It appearing, therefore, that each party had until the 22d day of December, 1894, at noon, to perform the contract,. I will consider in the first instance whether, under the facts disclosed by the record, the defendants were entitled - to the judgment awarded them for a specific performance of the-eontract.
To entitle them to that relief, it should appear from the testimony that on or before the twenty-second day of December the defendants had performed, or tendered performance of, the contract. (Flynn v. McKeon, 6 Duer, 203; Hoag v. Parr, 13 Hun, 95, 99 ; Eddy v. Davis, 116 N. Y. 247, 254; Leaird v. Smith, 44 id. 618, 623.)
Mr. Van Kirk, on Saturday, the twenty-second day of December, mailed deeds from the defendants to the plaintiff to Mr. Stiles, which were received by the latter on the following Monday and immediately returned. No other tender or performance was made. I think this tender was insufficient. It was made too late.. In his letter of October twenty-sixth, above referred to, to Mr. Van Kirk, who acted for all the defendants, Mr. Darrow said : “As you know, I am a farmer, and I must make arrangements for the ensuing year • for a farm at some place. This requires some time, so I may be able to move or prepare to put in crops for the ensuing year, and if it is desired to settle with me, it must be done on or before the 22nd day of December,. 1.894, at noon, or I shall make other arrangements absolutely and unqualifiedly; this matter must be finally closed and papers signed to that effect if a compromise is made,, otherwise, as a tenant, I shall leave the place on or before April 1st, 1895.” It has been held that “ The parties to a contract may, by its ■ terms, - make the time of performance essentially important and its observance in.
A tender to Mr. Stiles was unauthorized. Clearly the offer to perform should have been made to the plaintiff personally at his residence, or at the place mentioned in the contract for its performance.
Again, the plaintiff was entitled to receive from the defendants not only a good, but a marketable title to the farm in question. ( Vought v. Williams, 120 N. Y. 253; Irving v. Campbell, 121 id. 353; Moore v. Williams, 115 id. 586.) He was entitled to a good record title. (McPherson v. Schade, 149 N. Y. 16; Moore v. Williams, supra.) Had the tender or offer of performance made by Mr. Van Kirk to Mr. Stiles and received by the latter on December twenty-fourth been- in time and been made to the proper person, it was insufficient, because it did not offer a marketable title. Mr. Van Kirk offered quitclaim deeds from himself and the executors of Jacob N. Doty, deceased, and a warranty deed from eight of the devisees or legatees, and a paper called a search, but not certified by the clerk of Washington county or signed by any person. It is not denied that two deeds necessary to perfect the title of the deceased to the premises in question were not then on record; one from Angelia Doty to the deceased, and another from Theodore 0. Richmond to John Gr. Edinundson. Neither of these deeds was recorded until after the commencement of the action. There was evidence that the plaintiff’s attorney had seen one of the deeds in the possession of Mr. Van Kirk prior to December 22, 1894, but none that he had ever seen the other. Nor did it appear that such last-mentioned deed was .mentioned in the paper called- a search sent
Without, considering other alleged defects in the title offered- at the time in question, we think the alleged tender was ineffectual, for the'-reason' that the- two deeds above' mentioned were not then recorded, and were not offered to the plaintiff So that he could record them. A marketable title was not tendered.
■ The defendants, .therefore1, at the time to which the performance ■ of the contract was extended by-consent of the parties, did not perform- or offer to perform the contract, and were not entitled tó a •judgment for a specific performance. -
It does' not result from the conclusion thus reached that the plaintiff Was entitled to maintain his action for damages. The time " for -the fulfillment of the contract' was extended from the 5th day of April -to the 22d day of December, 1894. It does not appear that on that day, or at any time before the commencement of the action, the plaintiff offered or tendered performance of the'covenants of the contract on his part' to be performed, or demanded a deed from the defendants. .The covenants of the defendants’ testator to.execute a deed, and of the plaintiff to give a purchase-money mortgage and pay the interest then due, were" dependent, and either party, in •order to recover of the other, must show performance, or an offer to -perform. (Carman v. Pultz, 21 N. Y. 547, 549 ; Leaird v. Smith, 44 id. 618, 623 ; Hoag v. Parr, 13 Hun, 95, 99.) It'is only where ■ it iss- clearly shown that the vendor was Unable to give a good marketable, title, that an offer of performance by-the vendee seeking to •recover damages resulting from a breach of the contract will be ■ ¡excused. (Higgins v. Eagleton, 13 Misc. Rep. 223 ; Glenn v.
■ The judgment, as far as it awards a specific performance in favor of the defendants, should be reversed; otherwise, affirmed, without -costs to either party on this appeal or in the court below.
, All concurred.
• Judgment, in so far as it awards a specific performance in favor, ■of the defendants, reversed; otherwise, affirmed, without costs to either party of this appeal or in the court below.