2 N.Y. 364 | NY | 1855
The judgment rendered in favor of the plaintiff in this case must be reversed for errors committed on the trial, in admitting testimony to prove the value of the property sold or exchanged by each party to the other, and also in the charge of the judge upon the rule of damages to be adopted by the jury in making up their verdict. The defendant’s counsel objected to the evidence offered on the part of the plaintiff to prove the value of the property transferred by him "to the defendant. The court overruled the objection and allowed the evidence to be given, and the defendant’s counsel duly excepted. The court also charged the jury, that if they found from the evidence the agreement was that the plaintiff should sell to the defendant the farm described in the two land contracts, and the defendant should convey to him therefor the piece of land of about
I am satisfied that the judge errred in allowing the testimony to be given of the value of the property, and also in the charge thus given to the jury. The parties had by their agreement fixed an estimate and value upon the property which each sold and transferred to the other; it was not, therefore, in the province of the court and jury to make a new contract for the parties or fix a new price upon their property for them.
The plaintiff seeks by his complaint in this action to recover against the defendant for real estate sold and transferred to him at his request. It is entirely clear, from the testimony, that the plaintiff fully performed the agreement on his part by transferring the contracts held by him for the farm he let the defendant have with the crop growing thereon. The defendant took possession of the property and the land contracts were assigned and delivered over to him by the plaintiff. The plaintiff took a conveyance from the defendant of the 18 acres of land, and received payment
The judgment must be reversed and a new trial ordered on the grounds above stated: 1. For the error in admitting
The jury have found that by the agreement originally made between these parties the defendant was to transfer to the plaintiff a debt against Campbell, arising out of the sale by the defendant of the carding machine property to him, secured upon the property itself.
The original agreement for the conveyance of land by each party to the other and for the transfer of the above mentioned debt by the defendant to the plaintiff, was void in its inception under the statute of frauds. The parties, however, saw fit to proceed in its execution as if it were valid, and in performance* of it the plaintiff transferred to the defendant the two land contracts and received from him a considerable payment in money and a conveyance of about 18 acres of land. Thus the whole contract, save in a single particular, was performed by the parties to it, notwithstanding its invalidity; all that remained to be done to complete its performance was that the defendant should make the transfer of the Campbell debt. The plaintiff had fully performed. When each of these acts of performance took place, “ the parties virtually said, although the law will not enforce this contract, we will go on and cany it into .effect.” (Abbott v. Draper, 4 Denio, 54.) Each act of conveyance or payment was intended neither as a gift nor as an indefinite sale, but as a part performance of the agreement which the parties had entered into. When, therefore, the last conveyance required by the contract was made, its execution and acceptance were equivalent to a re-adoption by the parties of the remaining unperformed terms of the original agreement. It thereby ceased to be a contract for the sale of lands or an interest in lands and became a mere agreement to pay for lands conveyed. As such it was not within .the statute of frauds. A promise to pay for land
In the charge of the judge it appears that the jury were told that if witnesses, of equal integrity and capacity to judge, differed in their testimony as to the value of the land, they might take an arithmetical average of their estimates of value for the amount of their verdict; that this was a legal method of arriving at the amount of damages, if, after thus ascertaining the amount, they were satisfied that such amount was what they ought to give as damages. In Dana v. Tucker (4 Johns., 487), it was held that a verdict would not be set aside if the jury saw fit to pursue such a course as that pointed out in the charge; but so far as I am aware, this is the first time a jury has been instructed that such a course was proper to be pursued. Certainly, no reported case contains any intimation' of the propriety of recommending such a proceeding to the jury. Their general duty is to decide upon the evidence by some intellectual process, to weigh and consider it and give it such effect as in their judgment it deserves; and if the law does not forbid, it at least doesnot encourage their resorting to such a substitute for judging of the value, as taking an average of the testimony. Perhaps instructing the jury that they were to find their verdict for this average sum. only in case they thought it,
The judgment should he reversed and a new trial ordered.
Judgment accordingly.