127 N.Y.S. 671 | N.Y. App. Div. | 1911
On the 6th of October, 1903, the parties to this action entered into a written contract for the purchase and sale of real estate, the • consideration to be paid in installments as provided therein. The installments, aggregating $1,112, were paid, if not according to the terms of the contract, certainly to the satisfaction of the defendant, to the month of April, 1910. On the 16th of June, 1910, the defendant notified the plaintiffs that two installments amounting to $28 were due on their contract, and also $687.59 for interest, taxes and assessments, and requested a check for the same. On the ■ following day the plaintiffs sent to the defendant a check for twenty-eight dollars, and at the time wrote it that “ according to the terms of our contract * * *. the taxes and assessments may be paid by us in installments, as the principal sum and interest is paid.” The defendant acknowledged receipt of • the check, but declined to credit the samé upon the contract in payment of the installments due, unless the interest, taxes and assessments were also paid. Further correspondence took place between the parties,, each adhering to.his original contention that his construction of the contract was
The main question presented by the appeal turns upon the con - struction to be put upon the following clause of the contract: “ The price is Twenty-one hundred dollars, payable as follows: Twenty dollars on the signing of this contract, the receipt whereof is hereby acknowledged; and the further sum of Fourteen dollars in each and every month following the date hereof, until said principal sum and all taxes and assessments hereafter levied by the City and State of New York, the payment of 'which is hereby assumed by the vendee, together with interest beginning on the Sixth day of October, nineteen hundred & four, on unpaid balances of the purchase price and the amount of said taxes and assessments at the rate of five per cent per annum, shall have been -fully paid by the vendee. All taxes levied prior to the day of Oct. 6/0d, shall he paid by the vendor, and interest on the amount of the taxes and assessments to be paid- by the vendee shall be charged only from the date of confirmation of the same or payment for the same by the Company.”
Were the plaintiffs obligated under the clause quoted to pay the interest, taxes and assessments in addition to the installments provided for; in other words, were they in default when the defendant canceled the contract? It seems to me there can be but one answer to the question. The language used in the clause plainly indicates that all the moneys required to be paid by the vendees,
This conclusion is strengthened by the construction which the parties themselves put upon the contract. up to June, 1910. As already indicated, the contract was made on the 6th of October, 1903, and under it the appellants became liable for the taxes which fell due in 1905, 1906, 1907, 1908 and 1909, aggregating- $61.35, and for assessments levied December 13, 1906, and April '2-, 1908, aggregating $197.93. The plaintiffs were not asked to pay . these sums when they became due, nor was a suggestion ever made to them that they were obligated under the contract to pay them until the letter of June 16, 1910.' And the same is true as to the interest upon the principal sum, which, on April 1, 1910, amounted 'to $489.66. The respondent had received the $14 monthly installments, for over four years, without suggesting that anything more was due under the contract, and on the 17th of October, 1906, it fur
But it is urged, even if the foregoing views be correct, that the plaintiffs were, nevertheless, in default because they did not pay the installments which fell due on Hay 6 and June 6, 1910, and for that reason the defendant had a right to cancel the contract. The provision of the contract relied on is, “ In case the vendee shall fail to make said payments or any of them when the same shall become due, then this contract shall be null and void'and all rights of the vendee under this agreement * * * shall be cancelled, and
The defendant did not assume to cancel the contract until August 8, 1910. Were the plaintiffs then in default in the payment of the installments provided for ? I think-not. The contract, as we. have seen, was dated October 6, 1903. It provided for a. payment of twenty dollars on that day, which was paid, and the further sum of fourteen dollars “in each and every month following the date hereof” until all of the payments had been made. The first installment- of fourteen dollars was payable in November, and no day being specified, the plaintiffs had the whole month within which to make the payment (Curtiss v. Howell, 39 N. Y. 211), and for the same reason the installments falling due thereafter could be'paid at any time’during the month within which they fell due. On the 16tli of June, 1910, the plaintiffs had paid to apply on the -contract one thousand one hundred and twelve dollars that is, twenty dollars paid at the time of. its execution and fourteen dollars for each month thereafter, except the month of May. They were not then in default for the month of June, because they could pay that installment any time during that month.. They were in default for the month of May, but defendant could not work a forfeiture of the contract for failure to pay that installment before the thirtieth of June. If the plaintiffs were unable to pay that installment by reason of ill-health “ or other reasonable cause,” they had, under the 5th clause of the contract, a right to make it within two years, provided they notified the defendant in writing within thirty days after that installment fell due of "the cause of their failure to. pay. That installment did not fall due until the last day of May, and plaintiffs had until the last day of June within which to give the written notice. When the defendant, therefore, requested the plaintiffs on the sixteenth of June to send them a check for twenty-eight dollars to pay the installments for the months of May and June, all there was due under the contract was fourteen dollars.' The plaintiffs immediately complied with the request and sent a check for twenty-eight dollars. The defendant having asked for and received the check, could not thereafter refuse to apply it in payment of the installments falling due in May and June. Mor
It is also significant that the defendant, doubtless appreciating the force of the provisions of the contract which it had caused to be prepared, did not declare the contract forfeited for'the failure to pay the May installment, but on the contrary received the installment due in J uly without protest, and it was not until after the August installment had been paid that it attempted to cancel the contract, and then because of plaintiffs’ refusal to accede to its demand and pay the interest, taxes and assessments. On the eighth of August, when it returned the checks which had been sent in payment of the May, June, July and August payments, it notified the plaintiffs “that.your contract is hereby cancelled.” The plaintiffs were not then in default. They had made every payment called for by the contract. They had at that time fully performed on their part, and when the defendant refused further to perform, the plaintiffs had a right to maintain an action for damages.
It seems to me, therefore, that the court erred in dismissing the complaint, and for that reason the judgment appealed from must be reversed and a new trial ordered, with costs to appellants to abide event.
Ingraham, P. J., Clarke, Miller and Dowling, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellants to abide . event.