209 A.D. 679 | N.Y. App. Div. | 1924
This action is brought to recover $10,000 under a contract. The contract is dated November 17, 1921, and recites that the party of the first part (Antonofsky) owns a tract of land in the town of Liberty, Sullivan county, worth $50,000, upon which it is proposed to establish a sanitarium or hotel and boarding house; that the parties of the second (Sloan), third (Giventer) and fourth (Plotldn) parts each intend to purchase a one-fifth interest in said premises, and the business to be conducted thereon, for the sum of $10,000 for each fifth. The party of the first part agrees to sell and the other parties agree to buy. The sale was consummated, the purchase price paid and the deeds delivered. It was also provided in the above-mentioned agreement that a corporation should be formed! and the title turned over to it and in consideration for the conveyance of title to such corporation the party of the first part should receive two-fifths and each of the parties of the second, third and fourth parts one-fifth of the capital stock of the said corporation.
The agreement further provided:
“ 10. Should no such corporation be formed, on or before April 1st, 1922, it is hereby especially agreed upon that the party of the third part and the "party of the fourth part shall be entitled to the return of all moneys paid by them hereunder or to be paid by them at the time of closing of title to the premises, upon the return of which money to them the said party of the third and the party of the fourth parts agree to reconvey his said one-fifth interest to either the party of the first part or to the party of the second part, both of whom hereby agree to return the said purchase price to the said party of the third and the party of the fourth part. This provision shall likewise apply in the event that a corporation will be formed, but will not engage in the business of conducting either a sanitarium or hotel, as hereinabove provided for.”
The corporation was not formed; the plaintiff demanded the payment to him of $10,000, and upon failure to pay, instituted this action to recover said sum. Although plaintiff has not tendered nor delivered a deed, he has been awarded a judgment against the party of the first part to said contract (Antonofsky) for the sum of $10,000, with interest thereon from April 1, 1922.
In the contract the agreement to repay and the agreement to reconvey are dependent clauses. The parties agreed that upon the
The result of the demand for and the non-payment of the $10,000 did not put the other parties to the contract in default, as the payment was not a mere gratuity but was the consideration for the conveyance by plaintiff. The whole contract shows this. Plaintiff was to pay $10,000 and receive a conveyance. The payment was to be completed and the deed delivered simultaneously. Then under a certain contingency plaintiff was to be repaid and was to reconvey. He was to receive what he had paid and return the property for which he had paid. Both parties were to be restored to their former status. Performance by one was to keep pace with performance by the other. A clearer case of concurrent dependent clauses would be difficult to imagine. The result of this action illustrates the injustice which flows from the maintenance of such an action — the respondent can, under this judgment, have both his land and the purchase price too, and the appellant will have neither land nor money.
There is one other question which perhaps merits some discussion. In that portion of the agreement above quoted concerning the repayment of the purchase price it is provided: “ the said party of the third and the party of the fourth parts agree to reconvey his said one-fifth interest to either the party of the first part or to the party of the second part, both of whom hereby agree to return the said purchase price to the said party of the third and the party .of the fourth part.” This is clearly a joint covenant upon the part of the parties of the first and second part. They are both to return the purchase price; the conveyance may be made to either but they are both to pay. The agreement to pay was joint only, and not joint and several. It is a general and well-established rule that promises by two or more persons create a joint duty unless the contrary is stated. “ It is a general presumption of law that when two or more persons undertake an obligation they undertake jointly, words of severance being necessary to overcome this primary presumption.” (United States Printing & Lithograph Co. v. Powers, 233 N. Y. 143, 152.)
I see no occasion to pass upon the other questions discussed by counsel, since if a new action be brought those questions may not arise.
The judgment and order should be reversed on the law and facts, with costs, and the complaint dismissed without prejudice, with costs.
Kelly, P. J., Rich, Manning and Kapper, JJ., concur.
Judgment and order reversed on the law and the facts, with costs, and complaint -unanimously dismissed without prejudice, with costs.