87 N.Y. 463 | NY | 1882
This was an action of ejectment. The defense was a general denial and a claim of adverse possession. The plaintiff established a legal title to the land in dispute. The defendant showed no title, and failed entirely to prove an adverse possession. He had no defense to the action, unless the written agreement between his grantor, Mattison, and the plaintiff for an exchange of lands was available for that purpose. That agreement, however, he repudiated. The referee finds upon sufficient evidence that the defendant at first proposed to carry out the agreement for an exchange, to which the plaintiff assented, and a day was thereupon fixed for the exchange of deeds; but at the time appointed the defendant refused to carry out the agreement, and, retaining his possession of the land described in the complaint, refused to surrender it upon demand, and claimed to own both parcels covered by the proposed exchange. He now relies upon the agreement thus repudiated to protect his possession against the plaintiff's legal title. Assuming that the transaction between himself and Mattison, in which he took an absolute deed, in no manner recognizing or reserving the plaintiff's right under the contract, but nevertheless with full knowledge of that contract, and agreeing by parol to carry it out, constituted him an assignee of his grantor's rights under the contract, so that he could have enforced them against the plaintiff, although such assumption may admit of debate and is strenuously denied; yet the difficulty remains that when called upon at the appointed *465
time to perform the contract and make the exchange he positively refused. For this reason the referee disregarded the attempted defense, and the General Term in affirming that decision hold that the defendant practically abandoned the contract, and so lost all claim to enforce its specific performance in equity, or to rely upon it as a defense to his possession. We think the ruling of the General Term was right. It rests upon a foundation common to all contracts, that two persons who are competent to make a contract are competent to waive or abandon it, and where both concur in such waiver or abandonment their united assent dissolves the contract, and the rights of each under it are ended. This was long ago held as to contracts respecting personal property. (Langfort v. Tiler, 1 Salk. 113; Lawrence v.Knowles, 7 Scott, 381; Clarkson v. Carter, 3 Cow. 84;McEachron v. Randles, 34 Barb. 305; Story on Sales, § 424.) The doctrine of these authorities is, that the refusal of one party to perform his contract amounts on his part to an abandonment of it. The other party thereupon has a choice of remedies. He may stand upon his contract, refusing assent to his adversary's attempt to rescind it, and sue for a breach, or in a proper case, for a specific performance, or he may assent to its abandonment, and so effect a dissolution of the contract by the mutual and concurring assent of both parties. In that event he is simply restored to his original position, and can neither sue for a breach or compel a specific performance, because the contract itself has been dissolved. The same doctrine has been often applied to contracts for the sale and purchase of real estate. (Lawrence v. Taylor, 5 Hill, 114; Battle v. Roch. CityBank, 3 Comst. 88; Morange v. Morris, 3 Keyes, 50; Tice v.Zinsser,
A further ground of reversal is urged, because a strip one and one-half rods wide along Jones' west line is included in the recovery. The referee draws our attention to the fact that Jones' west line is the eastern boundary of the plaintiff's deed, and therefore includes this strip as part of the thirty acres. If it was excluded, the north line would be pushed further north to make the full thirty acres, to which plaintiff was entitled. The judgment gives her no more than the full quantity, and we think the strip was properly included.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.