| N.Y. Sup. Ct. | Dec 3, 1855
The contract, which was in its nature executory, has been fully performed by both parties, and ' neither can maintain an action upon it, against the other. The plaintiff was not bound to' convey until the first payment was made. When that was made and he had conveyed, his obligation under the contract was performed.
When the defendant was called upon to perform on his part as to the residue,, it was at the plaintiff’s election whether he would have the remaining payments secured by notes or by mortgage. He elected to take the latter, and when this was executed by the defendant and delivered to and accepted by the plaintiff, the defendant had done every thing which the contract contemplated. The acceptance of the mortgage must be deemed to have been in satisfaction of the contract. (Bull v. Willard, 9 Barb. 641. Houghtaling v. Lewis, 10 John. 297. Howes v. Barker, 3 id. 506.) There are no collateral covenants. The plain intention of this part of the contract was, to fix the amount to be paid, and to provide in what manner the
Welles, Selden and Johnson, Justices.]