66 N.Y.S. 257 | N.Y. App. Div. | 1900
The plaintiffs are nephews, entitled to a legacy under the last will and testament of Leonard D. Hall, who was the owner, at the time of his death, of the real estate involved in the present action. By the terms of this will the executors of the said Hall were empowered to sell the real estate, and the property now in litigation was offered for sale at public auction on the 27th day of April, 1899. It appeared upon the trial that the plaintiffs entered into a parol agreement with their father, Shandanette Wheeler, to act as their agent in the purchase of this property ; that the said Shandanette Wheeler did appear and purchase it, paying $200 upon the purchase price, the remainder tobe paid upon the completion of the transaction on the fifteenth of May following. Subsequently, and on the third day of May, witli knowledge of the facts on the part of the. defendant Moore, Shandanette Wheeler entered into the following agreement in writing:
*51 “ Clove Valley, Jfay 3, 1899.
“ I hereby agree to sell to David V. Moore, the farm known as the Riley Morey place, which I bid off at public sale April 27, 1899, for fifteen hundred dollars. I hereby acknowledge having received a check for three hundred and ten dollars from David V. Moore, being for two hundred ($200) paid on place, and one hum dred and ten dollars profit. .
“ SHARD ARETTE WHEELER.”
On the same day the following paper was made and executed :
“ Clove Valley, May 3, 1899.
“ To the Executors of the Estate of Leonard D. LLall:
“ Object of this is to notify you that I have sold the Riley Morey farm to David V. Moore, and you will please deed the farm to him on his complying with conditions of sale.
“ SHARD ARETTE WHEELER.”
On the eighth day of May the following telegram was sent.
“ South Dovee, R. V., May 8th, 1899.
“ Haokett & Williams :
“ The Morey farm that I bought at the sale please make the deed to Dave Moore and he to pay you thirteen hundred.
“SHARDARETTE WHEELER.”
It further appeared from the evidence, and the learned court finds as a matter of fact, that “ the delivery of said assignment was conditional and upon the express condition, then and there made between the said Shandanette Wheeler and said David Moore, that the assignment was to have no effect if not satisfactory to these plaintiffs, and that then upon the payment of fifty dollars in addition to the sum of three hundred and ten dollars, which was then paid by said Moore to said Shandanette Wheeler, the said assignment was to be of no effect and have no force, and that such assignment of such bid signed by said Shandanette Wheeler was never delivered to said David Moore, but was a conditional delivery, conditioned upon the consent of these plaintiffs.” The learned court in a memorandum holds, upon the authority of Canda v. Totten (87 Hun, 72), that the contract between Shandanette Wheeler and the plaintiffs was void under the Statute of Frauds, and that when the. father sold to Moore he had the right to do so, and that there
The court holds, however, that the delivery of the contract was conditional; that it depended for its validity upon the consent of these plaintiffs, and some time subsequent to the decision the plaintiffs were permitted to amend their complaint to conform to the proofs.' This issue was not raised by the pleadings; the right of the plaintiffs to recover was base'd upon the,alleged contract between them and ■ Shandanette Wheeler, and as this contract was void under the Statute of Frauds, it is the same as. though no contract had ever been made. If there was no contract, then the plaintiffs’ complaint did not state a cause of action, and we are clearly of opinion that there is no warrant in section 723 qf the Code of Civil Procedure for an amendment of the complaint which will give a cause, of action where none was stated in the original pleadings! The Code provision is that “ where the amendment does not change substantially the claim or defense,” the pleadings may be changed to conform to the facts proved; but to so change 'the pleadings after the trial as to give the plaintiff a cause of action where none is set up in the pleadings is a material change in the claim' of the plaintiffs,, and cannot be supported. “Pleadings and a distinct issue,” say the court in Southwick v. First National Bank of Memphis (84 N. Y. 420, 429), “ are essential in every-system of jurisprudence, and there can be no orderly adinimstratiqn 'of justice without them. If a
Upon the merits of the question, however, we are unable to agree with the learned court below.. The contract between Shandanette Wheeler and the plaintiffs being void, the purchase of the property by Shandanette Wheeler had no relation whatever to the plaintiffs. They had no interest in this real estate; their interest was in a legacy left by the will. They have lost no rights and have paid no money by reason of the transaction. If, therefore, Shandanette Wheeler owed the plaintiffs no duty, he was at liberty to enter into the contract of sale with the defendant Moore. That contract was made between competent persons, for a good and sufficient, consideration, showing a net profit to Wheeler of $110. If the contract which is attempted to be made collateral to the written agreement be deemed to be established, it does not justify the conclusion that the delivery was conditional. The contract of sale between Shandanette Wheeler and Moore was complete upon its face, and the payment of $310, the receipt of which is acknowledged, entitled Moore to an immediate and unconditional delivery of the contract. If there was a collateral contract that defendant Moore should reconvey upon the repayment of $310, with an additional sum of $50 by the plaintiffs, there is nothing in the case to show that Shandanette Wheeler was in a position to make this contract for the plaintiffs, and it was without consideration, either from the plaintiffs or from Shandanette Wheeler. If the delivery of the contract was not absolute, then the defendant Moore had no right to the. $50 which the plaintiffs concede to have been, due to him as a condition precedent to their right to repay his investment and to take the property purchased at the auction sale, and the refusal of the defendant to accept this tender leaves the plaintiffs without any legal rights in the premises. While there are contracts between parties, made for the benefit of third persons, which may be enforced by the party in whose interest the agreement is made, this parol contract, for which no consideration moved from Shandanette Wheeler or from the plaintiffs to the defendant Moore, is not one of the class,
The judgment and order appealed from should be reversed, and judgment should be entered directing the executors of the estate of Leonard D. Hall to execute a conveyance of the premises to defendant Moore upon his complying with the terms of the sale.
All concurred.
. Judgment and order reversed, with costs, and judgment directed in accordance with the opinion of Woodward, J,