Smedberg v. More

26 Wend. 238 | N.Y. Sup. Ct. | 1841

Mr. Justice Bronson read an opinion, (a copy of which has not been furnished the reporter,) substantially as follows: He remarked that there was nothing to indicate that time was deemed by the parties important, in reference to the execution of the contract; it could not even be said that performance could be required within a reasonable time as usually understood, for that might mean only twenty-four hours or one week. Brackney undoubtedly was entitled to a reasonable time to purchase the judgment held 'by the Catskill Bank; and until the purchase was made, the vendors were chargeable with interest upon the amount thereof. He took an assignment of the judgment within fourteen days, and in that respect could not be deemed chargeable with laches. So on the other hand, the tender of a deed by the vendors within twelve days after demand, should in his judgment, be deemed a sufficient performance on their part, under a contract so loosely drawn as the present, to entitle them to sustain their bill. He said he spoke of the demand for a deed made in September, for he did not deem the letter of thé 24th df Jiily sufficiently definite to apjpri.se the vendors that á fóWn’al demand Was intended. Thé demánd ih the ^a's mixed up with óthéf matters, such as desiring ind'ulgehce ih the payment of a noté. Brackney himself did not eóñsidér th'é lettér a 'sufficient demand, or Why make thé second démánd. It is claimed oh the part of thé defendants that Brackney had a right to repudiate the contract óri thé ground óf thé hecéssity which existed for making repairs-, and the consequént importance of having a deed before incurring the héavy expenditures Which would be necessary; but Brackney knew of this necessity when he entered into the contract; and yet left the time indefinite for the execution of the deed. There is no pretence, (he also said,) that thé éxisténee of the incuiábráhces was a cause of objection on the part of Brackney, to the completion df the contract; thé incumbrañcés Were sought up and brought forward at the time of the demand for the deed, but when th'e deed was tendered tó him, Brackney did not ptit his refusal to accept it upon the existence Of the incumbrañcés, but that the time for a tender Was past. Besides; the existence of the incumbranées is not éveñ alleged in thé answer. Again: Bráckney entered into possession óf the premises shortly after the contract was made, and cóntíhuédih possession several months after he repudiated it. If he intended to break the contract and eóñsidér it at an end, he should have withdrawn his property. Finally, the judge concluded by expressing his hopes, that our Courts would not Follow the English cases in the great strictness held by them on the ‘subject of time ih thé performáncé óf contract's. With these vieWs óf the casé, he said he Was 'of opinion that the "decide óf th'é Chancellor 'Ought to be affirmed.

Semto'r Lee adverted to the testimony Of John W. Brackney, !á Witness examined oh the part df the defendants, who testified that thé purchaser in a conversation with one of the vendors, expressed his willingness to pay the balance of the first payment of $4000, which should remain after taking up the judgment of the Catskill Bank, on receiving the deed. This showed at least that the purchaser expected to receive the deed on making that payment. He was of opinion that the decree of the Chancellor should be reversed. The purchaser could not make the necessary repairs without endangering the loss of a very considerable sum of money; and besides the demand of a deed in July was amply sufficient.

Senator Furman said he also was for a reversal of the decree of the Chancellor. The vendors were entitled only to reasonable time to remove the incumbrances and execute the deed. No steps were taken by them to remove the incumbrances until after they had been informed by the purchaser that he had abandoned the contract; and twice did they neglect to give the deed, although formally demanded. If, under such circumstances, the vendors be held to have duly performed the contract on their part, the advantage is all on their side. When no time is specified in a contract, reasonable time is the rule. But here the demand for the deed, at all events, was made on the 27th September, which was followed by a notice of rescindment, and no deed was tendered until twelve days afterwards.

Senator Yerplanck said he agreed in opinion with Senators Lee and Furman, and expressed his general concurrence in the views of the law of the case as presented in the opinion delivered by the Vice-Chancellor. Indeed, he thought the Chancellor, in the main, did not differ much from the Vice-Chancellor; and that the probable reason of the Chancellor’s judgment was a misapprehension of the purport of the letter of the 24th July. The Chancellor assumes that the purchaser had asked for an extension of time for the payment of the balance of the first instalment. There is no evidence in respect to an extension of time, except the letter of the 24th July, and that relates to the payment of a note given on the purchase of horses.

Senator Dickinson said that he was also for a reversal. It had, however, been said that the purchaser was not entitled to be relieved from the contract, because he had not yielded unqualified possession of the property. But he would ask how could that be 1 The hides were in the vats, and could not be removed without endangering the loss of the property. As well might a farmer, who had put crops in the ground, be required to remove them before harvest.

The Chancellob observed, that in forming his judgment in the case, he had not proceeded upon the mistake, which it had been supposed he had made in misapprehending the letter of 24th July. It is the rule (said the Chancellor) that unless by the terms of the agreement, the time of making the title was made an essential part of the agreement, equity will assist the vendor, who has not been guilty of gross negligence, although the deed be not tendered until after a demand made.

Senator Hull said, that here was evidently culpable negligence on the part of the vendors, and he therefore would vote for a reversal.

Mr. Justice Bbonson enforced his view of the case. He repeated, that no day was specified in the contract when the deed was to be executed, and it was evident that the parties did not contract even in reference to the principle of reasonable time. Brackney was to purchase the judgment of the Catskill Bank, and no interest was to be charged after the date of the contract; but yet there was no provision as to time. He would venture to say, that no adjudged case could be found in which a contract was refused to be enforced, where the purchaser had entered into possession of the bargained premises, and remained in possession at the filing of the bill for a specific performance.

Senator Root remarked, that he had not been able to discover that the purchaser had sustained any injury. He knew of the existence of the judgments; a specific arrangement was made as to the judgment of the Catskill Bank, and as to another judgment held in New-York. The demand for a deed in July was made of a younger brother; the object of the letter of that date was to obtain an extension of payment of another contract, and no intimation was given that the contract would be rescinded if the deed was not delivered. The change in the money market was most probably the cause of the rescindment. Besides the demand in September waived the demand in July, and after the second demand, it cannot be said but that the performance was in reasonable time; from the period of the second demand only should the time be counted. The purchaser had obtained possession of the tannery, which probably was all that was valuable, and he might have gone on and made repairs with safety, as there is no pretence now of any existing judgment other than that of the Catskill Bank, and the judgment held in New-York. He would therefore vote for an affirmance of the decree.

Senator Nicholas observed that he had come to the conclusion that the decree should be reversed. In his opinion, there had been unwarrantable delay on the part of the vendors. When no time is specified in a contract for performance, the question is, whether time is of the essence of the contract, and to determine that question, depends upon the fact whether the rights of the parties are affected by time. When the purchaser in this case went into possession, the bargained premises were in a very dilapidated state, requiring to be restored to their original condition to enable the holder to enjoy them advantageously. No prudent man, under such circumstances, would incur any considerable expense in repairs until he had obtained a deed 0f the property. Besides: there were heavy incumbrances, of which the purchaser had no knowledge at the time of the contract. He also was of the impression, that the error of the Chancellor had originated in a misapprehension of the purport of the letter of 24th July. Although generally averse to interfering with contracts, he felt it his duty here to do so, as he considered the vendors grossly in default.

Mr. Justice Bronson again rose, and adverted to the testimony of the witness Brackney, to show, that at the time of the contract, incumbrances were known by the purchaser to exist, viz: the judgment of the Catskill Bank, and the judgment held in New-York; and then proceeded to observe, that there could be no pretext that the purchaser repudiated the contract on account of the existing incumbrances. At all events, he said, the demand of a deed in September waived the previous demand, and the tender of a deed by the vendors within twelve days thereafter, was sufficient to entitle them to a decree for a specific performance.

On the question being put, Shall this decree be reversed? the members of the court divided as follows:

In the affirmative: The President of the Senate, and Senators Dickinson, Furman, Hopkins, Hull, Humphrey, Hunt, Lee, Nicholas, Platt, Yerplanck, and Works —12.

In the negative: Mr. Justice Bronson, and Senators Clark, Ely, Hawkins, Hunter, H. A. Livingston, Paige, Peck, Rhoades, Root, Scott, and Strong—12.

Whereupon the decree of the Chancellor was proforma Affirmed.