Bowen v. Horgan

Lehman, J. The question here presented is, I think, not whether the court should order a rescission of the contract of sale, but rather whether the assignees of a purchaser who has for two years failed and refused to complete his purchase and has successfully resisted the efforts of the seller to compel performance of the contract of sale, may compel the seller to complete after, fortuitously, the value of the property has increased. A party to a contract can sue neither for breach of contract nor for specific performance without proof of performance or, at least, willingness to perform on his part, or of waiver of a default. Continued insistence by one party to a contract upon performance by the other party, even after default, may constitute a waiver of such default. Here the sellers of the property did insist upon performance even after default by the purchaser. So long as they insisted, they waived the default. Even on February 10th, 1931, when this court affirmed the order of Special Term compelling the purchaser to take title, the purchaser might have insisted upon its correlative right to *270 have the property conveyed to it. The purchaser, however, was unable or unwilling to complete its purchase, and then the sellers sought in effect to hold it in damages for its default. They still held title to the property. The judgment in partition required a judicial sale, and since the first sale had not been consummated, it was necessary to obtain an order for a resale, and it is said that because that order provided that, should the property sell for less than at the previous sale, the vendee should be required to pay the deficiency, an assignee of the vendee may insist even at this late date upon conveyance of title under the original sale to it. We assume that the original vendee may avoid liability for a deficiency by paying, before resale, the amount of its original bid with interest, costs and expenses, and thus acquire title to the property. Nevertheless, if a resale is held it would be the title of the owners and not the title of the original purchaser that would pass, for the original purchaser has no legal title to the property. It can hardly be doubted that the original purchaser could not compel a resale under that order, at least without tendering the original purchase price, interest, costs and expenses, if the sellers preferred not to proceed further under that order. The vendee’s default has been final and complete. All that the vendors are seeking is to be reimbursed for their consequent loss, and in all fairness they should be permitted to abandon these efforts if they see fit. The assignees are, at least, in no better position than their assignor would be, and in one sense they are in a less good position, for by the assignment they assumed no obligation to take title to the property, and no obligation to pay any deficiency upon a resale. They are affected by the order of resale only to the extent that the order modifies or extinguishes the right of the purchaser upon the original sale. All that was assigned to them was a speculative chance that the property might before resale become so enhanced in value that a profit could be made by the purchaser in default through the long *271 delay which the purchaser had occasioned. Even the original purchaser could insist on a conveyance to it only so long as the seller asserted rights under the original sale or the order of resale. There would be, perhaps, basis for a claim by the original purchaser that unless the sellers abandoned insistence upon performance by it of any obligation under the original contract of sale, it must be permitted to perform that obligation; then equity might require that in spite of the purchaser’s laches and default, the seller should be compelled to perform, or the order for a resale vacated and the purchaser’s obligations terminated by legal decree. The assignees are entitled to no such relief, for they have assumed no obligation, and the purchaser is asking no such relief. In fact, however, the order of the Appellate Division would have the effect of terminating any rights which the sellers might have against the original purchaser for payment of a deficiency upon a resale, for that order is based upon a finding that the sellers are abandoning the resale. I find nothing in the cases cited from other jurisdictions that is contrary to these views. I cannot find that Robertson v. Skelton (13 Beav. 91) is in point. From the incomplete statement of facts in the report, it appears that two “ lots ” had been sold at a judicial sale. One consisted of a reversionary interest subject to a life tenancy. .The purchaser having failed to complete his purchase' of these lots, the seller obtained an order of resale. When he discovered that one lot was worth more than the sum bid originally, he applied for an order withdrawing that particular lot from the resale, though otherwise insisting upon his rights under the order of resale. That the master of the rolls held could not be done without discharging the purchaser or permitting him to complete his purchase of the lot which the seller desired to withdraw. Here the sellers are asking no favor of the court, and are not seeking to enforce any rights under the order of resale. They maintain only *272 that they should not be compelled to proceed under that order when they prefer to abandon it. The order should be affirmed, with costs.