50 N.Y.S. 168 | N.Y. App. Div. | 1898
If the contract upon which this action is brought is to be considered merely as one for the sale by plaintiff to defendant of the brewery property in question, at a price equal to the amount of his judgment and the liens prior thereto, it is probable that the rule of damages adopted by the trial court is the correct one. It seems to be settled that, upon the breach of an executory contract for the purchase of land, the measure of damages is the difference between the actual value of the premises and the contract price; and this is so even when the breach is upon the. part of the vendee, and the vendor is the one who seeks to recover. The vendor may not, it seems, upon tender of performance on his part, recover in an action at law for the purchase price. He must either treat the contract-as repudiated, and recover whatever actual damages he has sustained in an action for its breach, or he must, if he would insist on its performance, go into equity, and procure a decree awarding to him the purchase price and the title to the vendee. 5 Am. & Eng. Enc. Law, p. 28; Railroad Corp. v. Evans, 6 Gray, 25; Congregation Beth Elohim v. Central Presbyterian Church, 10 Abb. Prac. (N. S.) 484-500; Wilson v. Holden, 16 Abb. Prac. 133; Van Brocklen v. Smeallie, 64 Hun, 467, 19 N. Y. Supp. 788.
But what are the relations of the parties to one another under the contract in question? At the time it was executed, neither owned' the premises. Each had a claim or lien against the same. The plaintiff’s was prior to the defendant’s, and the premises were about to be sold under its foreclosure. The substance of the undertaking is-that plaintiff will bid to the amount of his claim, if necessary, and that he will convey the title so obtained to the defendant, and also assign to him the judgment for deficiency remaining after the sale, and defendant on his part will pay to the plaintiff the full amount of his “present judgment, interest thereon, and costs and expenses of sale, including taxes, assessments, and water rents, which are liens xxpon said premises at the time of the sale.” Practically, the plaintiff sells to the defendant his claim and judgment against the property, and agrees to have such property sold and bid it off for defendant’s-
Under this view of the contract, it is clear that the measure of damage allowed upon the trial was incorrect. Defendant’s liability is measured by the amount of the purchase price which he agreed to pay. All but $15,000 of that was due at once upon tender of perfonfiance on plaintiff’s part, and for that amount, at least, he could recover in this action. As to the $15,000 for which, under the contract, a credit of two years was to be given, inasmuch as the defendant by Ms neglect to protect the title against subsequent foreclosure had put it out of Ms power to give the security he agreed to give, it must be held that his right to such credit has been waived, and the whole amount had at once become due and payable. These conclusions require a reversal of the judgment appealed from.
Judgment reversed, and a new trial granted, costs to abide the event. All concur.