117 N.Y.S. 78 | N.Y. App. Div. | 1909
On the 2.6th of April, 1906, the defendant entered into a written contract with one Harris whereby he agreed .to sell and Harris to purchase certain real estate in the city of Hew York for the sum of $28,500. Harris paid $500. at the time of the execution of the contract and agreed to pay the balance by taking the premises subject to a first mortgage for $18,000, a second mortgage for $2,500, a bond for $3,000 secured by a purchase-money mortgage, and $4,500 in cash on the 2d of July, 1906, when the deed was to be delivered. On the 28th of April, 1906, Harris assigned to the plaintiff all his “ right, title and interest in and to the said contract,” including the $500 paid. The contract provided that the $2,500 mort
The defendant in his answer alleged his ability and willingness to complete the contract, also plaintiff’s refusal, and asked that he be compelled to specifically perform.
The court found that the defendant was; within a reasonable time after July ninth, able to perform and that the plaintiff unreasonably refused to perform, by reason bf which facts plaintiff should be required to carry out the contract. Judgment was entered,accordingly and plaintiff appeals.
Hugel was neither party nor privy to the contract nor did he become so through the assignment to him by Harris. There are numerous authorities to the .effect — and I have been unable to discover any .to the contrary —that in the absence of an express agreement the. assignee of a personal contract is not liable on the covenants of his assignor. (New York Phonograph Co. v. Davega, 127 App. Div. 222 ; Adams v. Wadhams, 40 Barb. 225 ; Suydam v. Dunton, 84 Hun, 506 ; Ryan v. Pistone, 89 id. 78 ; affd., 157 N. Y. 705 ; Heinze v. Buckingham, 42 N. Y. St. Repr. 427 ; Forbes v. Reynard, 46 Misc. Rep. 154 ; Comstock v. Hitt, 37 Ill. 543 ; Springer v. De Wolf, 194 id. 218 ; Smith v. Kellogg, 46 Vt. 560 ; Page Cont. §§ 1266, 1267.) The contract, it is true, provided that the stipulations contained in it were “ to apply to and bind the heirs,
In Champion v. Brown (6 Johns. Ch. 398) the assignees of the vendee of a contract for the sale of real estate went into actual possession of the land contracted to be sold and the representatives of the vendor sought to charge them personally the unpaid balance of the purchase price. It was held that their repiedy was to impress a lien upon the property for the amount due, the assignees not being personally liable. The chancellor said: “ * * * Admitting the contract to have been duly assigned, the vendors could not have compelled the defendants to have paid the money. In this sense they could not have exacted from them a specific performance of the contract. * * * The remedy by the vendor against the assignee may be said to be in rem rather than in, personam.”
The case of Suydam v. Dunton (supra), is quite similar to the one now before us. There the executors of one Suydam contracted to sell certain real estate to the defendant, who assigned his interest in the contract to one Granger. At the time fixed for the completion of the contract Granger refused to accept the deed tendered on the ground that the title was defective, and thereafter commenced an action against the executors for damages. The execu
So here the assignment, neither bound 'Hugel to nor released Harris from tile obligation of the contract. All it did was to entitle Hugel to demand and' receive performance of the contract by Habel. Hugel never agreed in- writing to pay the purchase money, and, therefore, he cannot be compelled to specifically perform. For specific performance defendant must look to Harris.
The court held that plaintiff’s refusal to take title was unreasonable. It may well be doubted whether such a conclusion is justified by the evidence.' The time fixed for the delivery of the; deed, as we have already seen, was the second of July when an ad journment was taken to the fifth and from then to the ninth. The defendant was Unable at that time to give a deed according to the terms of his contract, and. so far as appears was not able to give such deed until the latter part of July or the first of September. Inasmuch as there must be a new trial and the evidence upon this subject may be different, it is unnecessary to here determine whether or not plaintiff’s refusal was Unreasonable. He was not, in any aspect of the case, entitled to a judgment impressing a lien upon the land contracted to be conveyed for the expenses incurred in searching the title or damages for defendant’s refusal to - perform. (Elter
It follows that the judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide event.
Patterson, P. J., Laughlin and Scott, JJ., concurred; Houghton, J., dissented.
Judgment reversed, new trial ordered, costs to appellant to abide event.