58 A.D. 49 | N.Y. App. Div. | 1901
The appellant presented to the estate of Augustin Daly, deceased, a claim for the damages sustained under a contract between Augustin Daly and one William J. Moffatt, which contract Moffatt had attempted to transfer to the appellant. That claim having been disputed by the executors, a reference was under the statute ordered to-hear and determine the claim. The referee decided that.-the claim should be dismissedupon his decision judgment was entered from which the appellant appeals.
The claim presented was for damages sustained by the violation of a contract, “including money paid said Daly, $1,500.” The contract was in writing and signed by Daly, by which, in consideration of $1,500, Daly agreed “to give to William J. Moffatt the exclusive right of the publication- of the official programme of my Yew York Theatre (Daly’s Theatre) for a term of three years, beginning with the regular theatrical season of 1899-1900 and continuing two years thereafter on further payment of the sum of fifteen hundred ($1,500) dollars on August 19,1900, and also of the sum of two thousand ($2,000) on August 19, 1901.” On May 20, 1899, Moffatt, in consideration of the sum of $2,500, assigned to the appellant this contract and all his right, title and intei’est therein, and- all his rights to any renewals thereof, the appellant to pay to Moffatt in addition the sum' of $500 on September 1, 1900, and $500 on September 1,1901. The assignment then continues as follows: “I have already paid Mr. Daly Fifteen hundred dollars ($1,500) under my said contract with him in payment of the amounts required under said contract for the season of 1899-1900, and the payment by you of Twenty-five hundred dollars ($2,500) this day made to me is a repayment of this Fifteen hundred dollars
This contract was for three years beginning with the season of 1899-1900, which appears to have commenced in September, 1899, and before this contract was to be performed the assignment to the appellant was made. Daly died on June Y, 1899, before the contract was to be performed. After Daly’s death his theatre was disposed of to others, and the appellant had no opportunity of performing the contract. It does not appear that Daly had any notice of this assignment of the contract or that he in any way approved of the substitution of the appellant for Moffatt. The performance of this contract by Daly was thus rendered impossible by his death, and as his executors did not continue the theatre after his death, there was no way by which either Daly or his personal representatives could perform the contract.
At the commencement of the trial before the referee, counsel for the executors stated that they considered that Moffatt, if he had not attempted to assign the contract, would now have a claim against the estate for $1,500, and that if the appellants would withdraw their claim and Mr. Moffatt, with the concurrence of the appellants, Would present a claim for $1,500, that claim would be received without objection; if, however, that course should not be taken, the executors would deem it their duty to interpose all the defenses that they had to the claim as presented. Counsel forjdie appellant refused to accept that offer and the trial before the referee proceeded. 'Evidence was received as to the amount of profits that would have been made by the appellant if they had been allowed to perform the contract, and at the end of the testimony counsel for the executors moved to dismiss the claim on the ground that the
; The two questions thus presented to the referee were, first, as to whether any right to damages accrued to either party to the contract by reason of the death of the other prior to the time that it was performed; and, second, whether appellant was entitled to recover the $1,500. It must be noticed that this contract was purely an executory contract, the performance of which was to commence in September, 1899, prior to which time the performance was rendered impossible by the death of Daly, one of the contracting parties. As there were no pleadings in this case we must depend upon the claim presented' to determine just what right the appellant attempted to enforce; from that claim it would appear that the appellant demanded a recovery for the damages sustained by virtue of a breach of the contract, but as a part' of the claim the amount paid to Daly was included. The consideration for the payment, of that sum to Daly by Moffatt having become void, because the contract was rendered incapable of being performed by the death of Daly, it would seem that Moffatt would be entitled to recover that sum as money had and received.
■ We think that the referee was right in the conclusion at which he arrived, that this contract was of such a character that it was abro-, gated by the death.of either party to it before the time of its performance; and that this contract came within the class which,, though absolute upon its face, was made upon the implied condition of the continued existence of the parties thereto. ’ It is not necessary to add anything to the opinion of the referee upon this point. He has, after a careful examination of the authorities, properly applied the rule stated in Lorillard v. Clyde (142 N. Y. 462) where the court says: “It is now well settled that when, pérformance depends on the continued existence of a given person or thing; and' such continued existence was assumed as the basis of the agreement, the death of the person or the destruction of the thing puts an end
The remaining question is as to the right of the appellant to recover the $1,500 paid by MofEatt to Daly upon the execution of the contract. The claim presented included a demand for the recovery of this amount. The assignment of the contract by MofEatt expressly provided that the consideration paid for that assignment was a repayment of the $1,500 paid by MofEatt to Daly and this, we think, was sufficient to transfer the right to recover from Daly or his estate, the amount paid by MofEatt in the event that the contract should become incapable of performance. Certainly, after the repayment by appellant to MofEatt of the amount that MofEatt had paid Daly, MofEatt could have no further claim upon that sum or right to demand its repayment to him if, for any reason, that amount should be repayable by Daly. There could be no question but that MofEatt could have transferred the right to recover this amount after Daly’s death, and we think that the instrument by which MofEatt attempted to assign the contract to the appellant Was sufficient to transfer to it the right to recover this amount in the event that MofEatt should, for any reason, be entitled to its repay
As we think that • the appellants were entitled to recover this amount of $1,500, there must be a retrial; but, as the appellant fails in its main contention, and as the respondents were bound to defend the claim, it should be without costs.
The judgment is, therefore, reversed, and a new trial ordered before another referee, without costs on this appeal.
Van Brunt, P. J.,-O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment reversed, and new trial Ordered before- another referee, without costs on this appeal.
