137 N.Y.S. 466 | N.Y. App. Div. | 1912
The judgment appealed from authorizes a discontinuance of the action by the plaintiff upon his request and dismisses the defendant’s counterclaim. To understand the questions involved a short history of the litigations between these parties becomes necessary. In 1896 the defendant Bryant contracted to purchase of one Parmelee a mill site containing five and sixty-seven one-hundredths acres of land. Bryant was to take possession and to' keep the buildings in repair and insured for two-thirds of the value. In the same contract was an agreement to sell to Bryant certain standing timber, and the consideration was to be the sum of $14,207. In the next year, 1897, this plaintiff purchased from Parmelee the mill site and the standing timber which Parmelee had contracted to sell to Bryant and at the same time entered into a contract with Bryant, which recites:
*602 “Whereas, the said Charles H. Turner has purchased of A. B. Parmelee & Son all their interest in and to a certain contract made by them with said Edwin B. Bryant, dated February 15th, 1896, for sale of certain lands and timber duly set forth in said contract, and
“Whereas, the said Edwin B: Bryant has duly surrendered and assigned all his interest in said contract to said Charles H. Turner, and has received from said Turner a discharge of his, said Bryant’s, indebtedness upon said contract.”
The contract then provides that Bryant agrees to saw and load upon cars certain timber at the price of two dollars per 1,000 feet, and Bryant guarantees that there are 6,000,000 feet of spruce and pine upon said land in merchantable logs for lumber and that he will make up any deficiency in said 6,000,000 feet. . Turner agrees to pay two dollars per 1,000 feet for the sawing of the lumber, and for a deficiency of the lumber Bryant is to pay two dollars and fifty cents per 1,000 feet. At the termination of the contract Turner agrees to convey to Bryant by warranty deed the said mill site, containing five and sixty-seven one-hundredths acres of land. It was agreed that Turner should keep the mill insured at the expense of Bryant, and the contract was to be completed in two years from date. The contract recites the mill as “the mill now occupied by said Bryant.” It developed that the guaranteed amount of spruce and pine was not found. Bryant did in fact saw large amounts of lumber for Turner. After the time limit of the contract, in May, 1900, Bryant brought an action against Turner and his wife, making no personal claim against the wife, to enforce his rights under said contract. He asked for a reformation of the contract, and that in case any money was found to be due to Turner from the plaintiff therein, for the right to pay the same, and thereby make himself entitled to a deed. This action was referred in May, 1902. Upon the trial the claim for reformation was denied, and it was determined that Bryant was not entitled to a deed of the mill site until he made up the deficiency in the spruce and pine in the sum of $2,186.16, and judgment was directed dismissing the complaint, unless the plaintiff should-pay to the defendant Turner within twenty-days of the service of a copy of the report $2,186.16, and upon
The modification of the decision 'of the Appellate Division gave to Bryant only lawful deductions for insurance on the sawmill burned and for the use of the sawmill hy Turner subsequent to the commencement of the action. It would seem clear that Bryant’s rights under the Parmelee contract' had been surrendered. Under his contract with Turner, however, he was impliedly, if not expressly, given possession of the sawmill site during the performance of the contract. He after-wards surrendered possession to Turner. He claims that possession was surrendered under an agreement whereby Turner was to allow him seventy-five cents for each 1,000 feet of timber sawed. The trial court has found that such an agreement was not made. His rights, therefore, must be determined as though with the right to possession during the continuance oí the contract he had voluntarily rendered possession to his vendor. In such case his rights would seem to be akin to the rights of a mortgagee to whom a mortgagor had voluntarily surrendered possession of mortgaged premises. In such case the mortgagor would be required to account for rents and profits.
In 39 Cyc. (p. 1630) the liability of a vendor in possession to account for rents and profits is thus in part discussed: “ The right to or accountability for rents and profits is frequently treated as correlative with or dependent upon the liability for or payment of interest on purchase money, the one being ordinarily treated as equivalent to the other, and the cases pro
Applying these principles to the case at bar, Bryant should not be compelled to pay interest upon the $2,800 while Turner had the use and occupation of the mill and before it was burned. Nor should Turner be required to pay for the use and occupation of the mill while Turner is relieved from the payment of interest upon his purchase price. A proper adjustment of the accounts between the parties would be to charge Bryant with the $2,800.22 specified in our former decree, and also with costs as taxed amounting to $581.38, and further with the premiums paid upon the $4,000 insurance policy by Turner, for which Turner should have credit under the contract itself. These premiums should bear interest from the time that they were paid to' the time of the fire. As against these sums Bryant should be credited with the insurance received amounting to $4,000. This would leave some balance owing by Bryant to Turner upon the payment of which Turner ’ should convey to Bryant the property in question.
The judgment heretofore specified may be deemed amended so far as be necessary to conform hereto.
The judgment appealed from should be thus modified and as modified affirmed, without costs to either party.
All concurred.
Judgment modified as per opinion, and as modified unanimously affirmed, without costs to either party. Form of judgment to he settled by Smith, P. J.