Mathewson v. Geer

210 A.D. 160 | N.Y. App. Div. | 1924

Sears, J.:

The plaintiff clearly had no power to make the contract of sale with the defendant Deyo Geer. Relief by way of enforcement of the contract was, therefore, properly denied the plaintiff. But, implied in the defendant Geer’s defense is a duty to restore the plaintiff as nearly as possible to his position when the contract was made. (39 Cyc. 1422, 1438.) This involves a duty on the part of defendant Geer to account to plaintiff for the profits of the farm during his occupation. He was not a party to the transaction between Mrs. Winegar and the plaintiff, and the profits which he must repay bear no necessary relation to the amount which the plaintiff was to pay Mrs. Winegar under plaintiff’s contract with her.

We would be content to modify the judgment so as to leave the value of the use and occupation for the referee upon the accounting which has been ordered were it not for the matter of the cutting of the timber. This subject involves the rights of persons not parties to this litigation, namely, the plaintiff’s three children, who are remaindermen. The plaintiff’s three children should, therefore, be brought in as parties in order that the matters in controversy may be finally determined.

The judgment should be reversed on the law and the facts, without costs, and a new trial granted.

All concur; Hubbs, P. J., not sitting.

Judgment reversed on the law and facts and new trial granted, without costs.