| N.Y. App. Term. | Dec 16, 1908
Plaintiff, appellant, is the owner and holder of four promissory notes made and delivered to him by the defendant, respondent. Suit on the notes was brought, resulting in a judgment for the defendant, and from that determination this appeal is taken.
Plaintiff sold a certain stationery business, including stock, fixtures, and good will, located at 687 Columbus avenue, to defendant for $6,-300-—$3,000 cash, balance in eight notes, payable quarterly. Plaintiff had a partner at the time, who was made a party defendant in this suit; but, since no mention was made of him upon the trial, this appeal is considered as involving the rights of plaintiff and defendant only. The written agreement of sale contained the following provisions :
“It being expressly understood and agreed that, upon the said party of the second part having paid the said $6,300 in full, this instrument shall be considered as an absolute bill of sale, and said parties of the first part agree to execute any further assurance of title, if necessary. In the meantime the said parties of the first part shall remain the sole owners of said business, goods, and chattels, but shall allow the said party of the second part to conduct it as long as the said installments are promptly paid, and upon default in the payment of any of the above installments the entire balance of the said installments then remaining unpaid shall immediately become due and payable, and if not so paid then the said party of the second part shall immediately quit and surrender said business to the parties of the first part; but, in consideration of his conducting the same in the meantime, he need not account for any of the profits he may have made during his management thereof, and the profits made during his management shall belong to him. The party of the second part must also pay the rent of said premises promptly, in consideration of his earning the profits of said business,, and upon his default in the payment in advance the balance of the purchase price of said business, goods, and chattels shall also immediately become due and payable, and if not so paid then the party of the second part must immediately quit the said premises in the*671 same manner as when he makes default in the payment of any of said installments. The parties of the first part hereby agree not to open or conduct, or to be directly or indirectly interested in, any similar business within the radius of six blocks of said premises, provided the party of the second part complies with and fulfills every term of this agreement, for the term of five years. The parties of the first part further agree that, upon compliance by the party of the second part with all the terms of this agreement, they will assign any right or title they may have in any lease of said premises, or extension or auction for an extension thereof.”
Defendant paid the $3,000, went into possession of the business, and paid four of the notes as they respectively fell due. The fifth note was due May 15, 1907; but the lease of the store, which had been taken by the plaintiff, and under which defendant occupied the premises, expired on May 1, 1907. It was a sublease, and the lessor did not renew his lease, which expired at the same time; so the defendant got his father to take a lease of the entire building directly from the landlord at a rental proportionately higher for the store mentioned in the agreement. It appears that there was nothing to prevent plaintiff’s taking the lease himself, except pecuniary inability. On or about May 1st defendant’s business was moved into another store covered by the new lease, next door to the one he had been occupying. The note due May 15th was not paid; hence this suit for $1,700, the amount of the four notes remaining unpaid.
Defendant was permitted to testify, over objection and exception, that the plaintiff, at the time the agreement' was made, promised to1 obtain a renewal for three years of the lease then existing of the store. I think this an error. The contract of sale was complete in itself, and could not be thus varied by oral testimony. At most, the alleged promise was collateral, and could be enforced, if enforceable at all, only through a counterclaim or an independent action for damages for its breach. No such counterclaim was set up; but, even if it were, it could not be enforced, because of lack of consideration. Since no mention is made of the extension of the lease in the agreement of sale, and it appears from the testimony that defendant had full knowledge, at the time of the making of the agreement, of the nature and term of the sublease under which he took possession of the store, it must be held that he voluntarily took the chance of his being unable to secure a renewal. It is worthy of note, too, that defendant was not dispossessed on May 1st, but could have renewed his lease from the landlord (including, of course, the other store covered by the lease to his father) and continued his business there as formerly, had not pecuniary embarrassment and considerations of economy induced him to move his business into the adjacent store.
Defendant contends that he made a valid tender of the property to the plaintiff after he learned that he could not secure a renewal of the lease pursuant to the terms of the contract of sale, and that therefore the defendant was barred from suing on the notes. He insists that, since the contract of sale provides an alternative remedy to that of suit on the notes, namely, the recovery of the property sold, he was limited to that remedy by virtue of the alleged tender. I am of opinion that such tender, even if made with all the required legal formalities, would, under the circumstances, be ineffective to deprive plain
“New York, April 29, 1907.
“Mr. M. Norton, 983 Tremont Ave., Bronx, N. Y.—Dear Sir: As I have told you when you called at my place o£ business, the store which I am now occupying is rented from May 1st next to somebody else. The new tenant will take possession of the store on May 1st. I will have to get out on that day and leave the fixtures there. You better do something in this matter. Expecting to hear from you, I remain.”
This letter is altogether insufficient as a tender, in any view that reasonably can be taken of the force and effect of the language used in the contract of sale. The motion of the plaintiff for a direction of a verdict should have been granted.
The judgment and order appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.