Wittwer v. . Hurwitz

Cuddeback, J. The original contract signed by the defendants provided that the purchaser procured by the plaintiff should assume the $15,000 mortgageheld by the savings bank, whereas- the purchaser named by the plaintiff in his communication of October 26, proposed simply to take the property subject to the savings bank mort *263 gage. This proposal the defendants answered by what was in effect an acceptance upon condition that the payment of $10,000 in cash required by the contract should be made before 12 o’clock that night. The plaintiff insists that the defendants, by this answer to his proposal, waived the requirement that the purchaser should assume the mortgage, and that the condition which they attached to their answer requiring payment of $10,000 before 12 o’clock was entirely unjustified. The plaintiff further insists that, with the provision for the assumption of the mortgage thus waived, he complied with the contract of October 26, by procuring a purchaser ready, able and willing to buy the defendants’ property on the defendants’ terms, within the time limited by the contract, and that it was not necessary that the actual contract of sale should be made within that time. To sustain the claim of waiver, the plaintiff relies on the rule that the defendants having based their refusal to perform on the ground that the money was not paid before 12 o’clock, they could not thereafter relieve themselves from liability, upon the ground that the purchaser did not offer to assume the mortgage, citing Johnson v. Oppenheim (55 N. Y. 280); Mooney v. Elder (56 N. Y. 238); Duclos v. Cunningham (102 N. Y. 678). While the defendants contend that the provisions of the contract relating to the assumption of the mortgage were not waived, they also contend that the conditions which they imposed in their answer to the plaintiff’s proposal, whereby they required payment of $10,000 before 12 o’clock, were proper and valid, and the failure of the plaintiff to meet those conditions renders the question of waiver immaterial. The plaintiff had. not performed his contract with the defendants to procure a purchaser who would assume the mortgage, but had produced a purchaser who proposed to buy subject to the mortgage. In answer to that proposal the defendants made their position clear. Both in their written communication of Octo *264 ber 26, and their conversation over, the telephone, the same evening, they insisted upon what was practically the immediate payment of the $10,000, and they refused on October 29 to deliver the deed demanded, on the ground that the purchaser had failed to pay the money on the night of October 26. The defendants thus made a conditional acceptance of the plaintiff’s proposal. The defendants had the right to attach the condition requiring' prompt payment to their acceptance, and if the plaintiff failed to secure compliance therewith there was no contract made. The plaintiff did not secure compliance, saying that he had done his duty and compliance with the defendants’ condition was not necessary. It did not, of course, lie with the plaintiff to question the reasonableness or propriety of the terms imposed by the defendants. If the plaintiff had produced a purchaser, able and willing to comply with the defendants’ contract and assume the savings bank mortgage, then the question whether the defendants could require the purchaser to pay $10,000 before 12 o’clock might be important; but as the facts appear, that question is not presented. If, on the other hand, the plaintiff’s customer had paid the $10,000 before 12 o’clock, then and then only would the question whether there was a waiver of the provisions of the contract relating to the assumption of the savings bank mortgage become material. The case is analogous to those wherein the rule has been laid down that if a proposal made by one person to contract with another upon certain terms and conditions is met by a counter offer to contract on different terms and conditions, the first proposal is thereby rejected and the counter-offer may become the basis for further negotiations. (Howells v. Stroock, 50 App. Div. 344; Sidney Glass Works v. Barnes & Co., 86 Hun, 374, 377; McCotter v. Mayor, etc., of New York, 37 N. Y. 325.) I think that the dealings between the parties to the present action *265 on October 26 did not pass beyond the stage of negotia: tian, and that the plaintiff failed to make out a cause of action against the defendants. The judgment appealed from should be reversed and a new trial granted, with costs to abide the event. Willard Bartlett, Ch. J., Collin, Seabury and Pound, JJ., concur; Chase and Cardozo, . JJ., dissent. Judgment reversed, etc.