| N.Y. App. Div. | Jul 1, 1898
It has been held that where one performs services or advances money or other consideration on the faith of a parol contract of another to convey real estate, the value of such services or amount of such consideration cannot be recovered as under an implied contract, unless the party agreeing to convey the land has refused, or put it out of his power to do so. (Campbell v. Campbell, 65 Barb. 639" court="N.Y. Sup. Ct." date_filed="1866-01-02" href="https://app.midpage.ai/document/campbell-v-campbell-5462737?utm_source=webapp" opinion_id="5462737">65 Barb. 639; Abbott v. Draper, 4 Denio 51" court="N.Y. Sup. Ct." date_filed="1847-01-15" href="https://app.midpage.ai/document/abbott-v-draper-5465347?utm_source=webapp" opinion_id="5465347">4 Den. 51; Day v. N. Y. C. R. R. Co., 51 N.Y. 583" court="NY" date_filed="1873-03-05" href="https://app.midpage.ai/document/day-v--nycrr-co-3615687?utm_source=webapp" opinion_id="3615687">51 N. Y. 583, 590; Galvin v. Prentice, 45 id. 162,165.)
It was shown that the plaintiff had fully performed the contract entered into between her and defendant’s intestate. She had paid for the land and was entitled to the conveyance which the deceased had agreed to make after he moved into the plaintiff’s premises. Although he lived with the plaintiff nearly two years, he failed to fulfill his agreement to convey. The witness Robert Ritchie testified : “ After he came there to live I heard my wife tell him he ought to go and deed the property to her. He said he would in a few days, in a little while; he wasn’t feeling well. On other occa
This, therefore, was the situation: Mr. Cleveland had, in the verbal contract, agreed to convey his house in Bath to the plaintiff when he came to her house — that is, within a reasonable time. The plaintiff and her husband, after the lapse of such reasonable time, made repeated demands upon him to make such conveyance, and while never refusing in words to do so, he failed to comply with their requests. The plaintiff evidently endeavored to obtain the conveyance. She did all that she could to that end. She w*as not called upon to tender him a deed to be executed. “ The English practice, requiring the vendee to tender a deed, has never prevailed in this State. It is naturally the duty and office of the vendor to have it prepared.” (Flynn v. McKeon, 6 Duer, 203" court="None" date_filed="1856-11-22" href="https://app.midpage.ai/document/flynn-v-mckeon-8825869?utm_source=webapp" opinion_id="8825869">6 Duer, 203, 207; Stone v. Sprague, 20 Barb. 509" court="N.Y. Sup. Ct." date_filed="1855-09-03" href="https://app.midpage.ai/document/stone-v-sprague-5458921?utm_source=webapp" opinion_id="5458921">20 Barb. 509; Fuller v. Hubbard, 6 Cow. 13" court="N.Y. Sup. Ct." date_filed="1826-08-15" href="https://app.midpage.ai/document/fuller-v-hubbard-5464630?utm_source=webapp" opinion_id="5464630">6 Cow. 13; Ger. Tit. 490.)
Here, therefore, was a performance of the contract by the plaintiff and a neglect on the part of the deceased to execute the deed of the Bath house and lot, as he had agreed to, after repeated demands duly made by the plaintiff and her husband to make such conveyance. The deceased neglected to comply with the just demands of the plaintiff. We think the situation is the same as if Mr. Cleveland had in words refused to convey the premises in question to the plaintiff. Ilis neglect to convey, after repeated demands duly made, should be deemed a refusal.
But assuming that there was no refusal on the part of the deceased to convey the premises in question, in pursuance of the verbal contract, in consequence of his death, his agreement being incapable of performance, was not the plaintiff entitled to recover? It has been held that where services are rendered by one for a deceased party
In Robinson v. Raynor (supra), the deceased having promised to pass the title to real estate by will in payment for services, and having failed to comply with his agreement, the party to whom he made the promise was held entitled to recover the value of the services rendered on the faith thereof. And it was held that it made no difference whether the failure of the deceased arose from accident or design.
In the case under consideration, Hr. Cleveland promised to pass the title of the Bath house and lot to the plaintiff by a deed prior to his death, and has failed to do so, no fault being imputed to the plaintiff for such failure, as she did all that was possible to obtain the conveyance. Why, therefore, cannot an action be maintained by the plaintiff to recover for such services rendered on the faith of Hr. Cleveland’s promise to convey the property in question, which he has failed to perform, as well as in the case of Robinson v. Raynor (supra), where the promise was to pass the title to the real estate by will ? In each case there was a failure to perform the verbal agreement to convey real estate, on the faith of which the services were rendered. The plaintiff has in good faith paid by her services for the Bath house and lot. Mr. Cleveland had died without conveying it to her in pursuance of his agreement, ánd the contract as to the real estate cannot, therefore, be performed. Under such circumstances the plaintiff should be entitled to maintain her action.
Fuller v. Williams (7 Cow. 53" court="N.Y. Sup. Ct." date_filed="1827-02-15" href="https://app.midpage.ai/document/fuller-v-williams--hubbard-5464839?utm_source=webapp" opinion_id="5464839">7 Cow. 53) and kindred authorities holding that where a contract is made for the conveyance of real estate, and the vendor dies, a demand for a conveyance must be made of his heirs, and an action cannot be sustained until they refuse to convey the premises in pursuance of the contract of their ancestor, are not parallel to the case under consideration. In the case cited, the parties had executed a written and valid contract. Under such a contract the vendee became the equitable owner of the land and the
In this case the verbal contract of the deceased to convey the house and lot in Bath not being valid, plaintiff could not obtain the title she bargained for from the heirs of Mr. Cleveland. The real estate of the deceased for the period of three years after the issuing of letters of administration to the defendant was subject to the payment of the intestate’s debts. If the plaintiff should take a deed of the house and lot in question from the heirs of Mr. Cleveland she would be compelled to take it subject to the unknown'and undisclosed lien of any creditor or creditors of defendant’s intestate. The plaintiff, therefore, was not compelled, in order to maintain this action, to demand a conveyance from the heirs of Mr. Cleveland. They could not convey the title the deceased promised to give.
The contract, as to the conveyance of the Bath house and lot, has not been performed by Mr. Cleveland according to his agreement, and is now incapable of performance, and we are of opinion that the plaintiff is entitled to recover the value of the board furnished said deceased on the faith of such agreement.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment reversed, new trial granted, costs to abide the event.