31 N.Y.S. 924 | N.Y. Sup. Ct. | 1894
The action was to recover the second installment of the purchase price of lands sold by the plaintiff's assignor to the defendant, by a contract in writing, which is set out in the complaint. The contract price was $22,000, of which the first install
“When the second payment of said purchase money, to wit, three thousand five hundred dollars ($3,500), to be paid on or before November 1st, 1893, is paid, then the party of the first part is to execute a deed of said premises, and the remainder of said purchase money is to be secured as hereinbefore mentioned.”
The defendant demurred to the complaint as not stating facts sufficient to constitute a cause of action, and the demurrer was allowed, on the ground that it was necessary, under the contract set out in the complaint, to allege the tender of a deed before action brought. We think the holding was correct, and that the demurrer was well taken.
There has been a good deal of discussion by the courts, and some not altogether consistent exposition, of the doctrine of dependent and independent covenants; but the question commonly resolves itself into one of construction of the contract, viz. as to whether the acts which constitute each the consideration of the other are intended to be concurrent, or whether either is intended to precede, and its performance to lie a condition precedent of the other. In the former case the promises are mutually dependent, and neither party can maintain an action thereon without alleging and proving tender of performance on his part. In the latter ease it is only the party charged with the first act that, must perform or tender performance before he can enforce the obligation of the other party. Morris v. Sliter, 1 Denio, 59; Kirtz v. Peck, 113 N. Y. 222, 21 N. E. 130. In this case we think the contract by its terms plainly imports that the promised payment of the second installment and the delivery of the deed were intended to be concurrent acts. The language is: "When the second payment * * * is paid, then the party of the first part is to execute a deed,” etc. We think that the word “when” in this case means at the time when, and that the payment and delivery of the deed were intended to be concurrent acts. But there is more of the provision; it is also provided that, at the same time, the security agreed to be given for the payment of the remainder of the purchase money shall be given to the plaintiff. These provisions seem to us to indicate the intention of the parties, that at one time, viz. at the time of the payment of the second installment of the purchase money, the whole matter resting in contract should be closed up, the deed should be given on the one hand, and the securities executed or transferred on the other hand, and that the contract should then and there be fully performed. If such is not the import of the agreement, then no time whatever is fixed for the important transactions which remained, except an indefinite time after payment of the second installment.
In the case of Beecher v. Conradt, 13 N. Y. 108, the covenant to. convey was upon the express condition that “the party of the second part do well and faithfully perform the covenants hereinafter men
Interlocutory judgment appealed from affirmed, with costs, and -final judgment ordered thereon for the defendant, unless the plaintiff serve an amended complaint in 20 days, and pay the costs of the .demurrer and,of this appeal.