118 N.Y.S. 602 | N.Y. Sup. Ct. | 1909
On March 27, 1908, the plaintiff was the owner of a farm in the town of Otto, Cattaraugus county, H. Y., of 251 acres, about 30 acres being covered with first growth standing timber; a considerable quantity of second growth standing timber and a quantity of down timber being also on said premises; the plaintiff also having upon the said farm a dairy of thirty-five cows, three horses, other stock and a quantity of farming tools, etc., all of the value of about $11,000; the real estate being worth about $9,000. On that date plaintiff executed and delivered to the defendant a deed conveying the real estate and a memorandum agreeing to leave such live stock, farming tools, etc., on the farm for the defendant; such conveyance and sale of personal property being for the' consideration of $11,000; defendant paying $1,000 of such purchase price by conveying to the plaintiff certain other real estate and securing the balance of the purchase price, viz: $10,000, by executing and delivering to plaintiff his bond, conditioned for the payment of that amount to plaintiff in annual instalments of $100 each together with semiannual interest on the entire debt at five per cent., the whole amount to become due in twenty years; defendant having the privilege of paying any additional sums at the time of making the payment of interest upon giving plaintiff three months’ notice of intention to make such additional payments. And concurrent therewith defendant executed and delivered to plaintiff a real estate mortgage covering the farm as security for payment of the bonded indebtedness. At the time of the execution and delivery of the deed, bond, mortgage and memorandum as to personal property, it had been agreed between plaintiff and defendant that the defendant should not remove any timber from the farm, unless the selling price thereof should be paid to the
In the summer of 1908, defendant cut some of the standing timber into logs, cut some of the tree tops and dead timber into heading bolts and fire wood, stating that there was nothing in the writings between plaintiff and himself about the timber and that he could cut what timber he had a mind to. The plaintiff found fault with the defendant for cutting some trees that she said he had no right to cut, when defendant stated: “ If I want to chop down some trees I chop them down, and I be willing to pay it on the mortgage the way we agreed to it.” Before defendant had removed any of the timber, logs, heading bolts or fire wood from the farm, the plaintiff, on August 19, 1908, brought this action' for the purpose, among other things, of having her real estate mortgage reformed by inserting therein a provision embodying the oral agreement relative to the timber on said farm and restraining the defendant from removing any of such timber in violation of such agreement. During the fall of 1908 and the following winter, the defendant removed from said farm logs, bolts and fire wood of the value and for which he received the sum of $344.41, all of which under said agreement relative to the timber was the property of the plaintiff and should have been paid by the defendant to the plaintiff to be applied on the principal of defendant’s indebted
While it is true that the provision in the bond relative to the payment of any greater sums than the annual instalment of $100 or the semiannual interest at the time of making any payment of interest does require that three months’ notice of such contemplated payment be given by defendant to plaintiff, yet, this provision being solely for plaintiff’s benefit, she could waive the advantage of such provision; and when, on the 18th of February, 1909, she served upon the defendant a written demand for the moneys received by him for the sale of timber, heading bolts for fire wood, etc., removed from the farm to be applied upon the principal indebtedness, defendant could not rightfully refuse to comply with such demands. The agreement between the parties requiring the avails of such sale of timber, etc., to be applied upon the principal of plaintiff’s indebtedness, the defendant had no right to use any of such timber moneys to pay the interest upon such indebtedness. It was the duty of the defendant to pay the interest upon his debt out of some other funds, and it is no answer to plaintiff’s demand for the timber moneys to be paid to her to apply on the principal
The plaintiff also asserts a cause of action for specific performance of an alleged oral agreement of the defendant to give to her a chattel mortgage upon the personal property sold by plaintiff to defendant accompanying said farm, as collateral security for the payment of the bonded indebtedness of $10,000, and thereby claiming that she should receive from the defendant a chattel mortgage upon thirty-five cows, one bull, three horses, tools, etc., to secure the payment of $10,000 in twenty years, with no provision for the selling or exchanging of said animals, or that the mortgage would cover additional animals or property placed upon the farm, and with the right to the plaintiff to take possession of such chattel property at any time she should deem her security imsafe, sell the same at public or private sale, and have all the rights and privileges of and concerning such live stock and property usually accorded a chattel mortgagee under the laws of the State of Hew York.
While it is true that the plaintiff sold to the defendant live stock and personal property worth from $2,000 to $3,000 in connection with the sale of the farm, without taking any security upon such property for the payment of any part of the entire purchase price of $11,000, and while it is true that in the exercise of good business judgment she probably ought to have required that such security be given to her, yet, however meritorious such claim may be, this court is utterly powerless to relieve the plaintiff, unless it can be found from the evidence that the defendant, at the time of or prior to the sale, actually agreed to give such a chattel mortgage, or possibly some sort of a chattel mortgage. The court cannot make an agreement for the parties and then decree a specific performance of such judicially created contract. It will not do to say that it is not to be presumed that plaintiff would have sold thirty-five cows, other live stock, farming tools, .etc., to the defendant to be paid for in twenty
This conclusion leads to a dismissal of the plaintiff’s cause of action relative to the chattel mortgage. It is clear -that neither party is entitled to costs as against the other. While costs are in the discretion of the court and ordinarily the sue
Both parties to this litigation have been in error as to their alleged rights; and, in the exercise of the discretion to dispose of costs in an equity action, costs are not awarded to either party. The defendant, while he succeeds upon the issue as to the chattel mortgage, does not succeed upon the other issue tried and submitted and is not entitled to costs.
Let findings be prepared in accordance with the foregoing facts and conclusions.
Judgment accordingly.