Boyd v. De Lancey

Ingraham, J.; It seems to me that , there has been some confusion as to the ground upon which the • plaintiff was permitted to recover in this action. It has been treated as an action to recover damages for the breach of a contract to convey land, and the verdict of the jury is evidently based upon that theory. While the agreement between the parties may be a contract to convey the land therein described, it was also an agreement to make a contract, and it would seem as if the right of the plaintiff to recover must depend upon a breach of the agreement to make a contract. It will be useful, therefore, before we discuss the evidence, to determine just what the contract is, and just what breach is alleged. The complaint alleges, after setting forth the contract between the-parties as actually made, “ That the said deféndant did wholly refuse and has wholly refused and neglected to execute the said contract so teúdered, and did wholly refuse and has wholly refused and neglected to execute a contract as covenanted and agreed by him, and has wholly refused and neglected to do and perform the acts which in,the said contract dated October 20th, 1892, he covenanted and agreed to do and per-, form.” How, this agreement of October 20, 1892, was one prepared by and signed by the defendant. By that agreement, in consideration of $1,500 then paid to him by the plaintiff, he gave the plaintiff until December 31, 1892,. an option to purchase for the sum of $85,000 in cash a certain tract of land in the town of Mamaroneck, county of Westchester, described by metes and bounds, and also made the further agreement,, that upon written notice of an election to purchase at least fifteen days prior to the 31st day of December, 1892, the defendant would “execute to said Boyd, or — 569 — whomsoever he shall name in writing, in such notice, a contract for the conveyance of the said premises on payment of eighty-five thousand dollars in cash on the 15th day of January, 1893, by warranty deed conveying a good title in fee simple.” It will be noticed that this agreement in form first granted to the plain tiff an option to purchase “ from the date hereof to the thirty-first day of December, 1892,” the premises in question; and also provided that, upon' receipt of written notice of such election fifteen days prior to the date at which the option was to terminate, the defendant would execute to the plaintiff a contract for the conveyance of land on payment of $85,000 in cash on the 15th day of January, 1893. The complaint alleges a breach of this agreement to make a contract, and also a breach of all other acts that the defendant was bound to do. Upon the trial, however, the sole evidence from which the plaintiff sought to establish a breach, was a refusal to execute a contract in form as prepared by the plaintiff when tendered to the defendant by the plaintiff for execution; and it was conceded by the plaintiff that on the fifteenth day of January a deed was tendered to him of the premises, which in all respects conveyed the title to which the plaintiff would have been entitled on that day had the contract been executed. There was clearly no breach of a contract to convey the land. Was there a breach of the agreement to execute a contract for the'sale of land % I am inclined to think that there was no such breach proved ; but a majority of the court is of the opinion that there was a breach of the agreement to execute a contract by the defendant for the reasons stated in the opinion of Mr. Justice O’Brien. We, .however, all agree that the plaintiff was not entitled to recover more than nominal damages for a breach of the agreement to give a contract. On the trial the jury were not instructed as to. what principles should govern them in computing such damages; nor was there the slightest intimation to guide them as to whether or not a breach of the obligation to give a . contract justified a recovery for the difference between the value of the land and the price that the plaintiff was to pay for it; and although from the evidence given at the trial it would seem that that was the rule of damages upon which the verdict was based, there is nothing in the instructions of — 570 — the court to the jury to show the principle- upon which they should act in determining the value of this contract which the plaintiff failed .to get and to which he was entitled. The jury, however, gave to the plaintiff a verdict of $6,000 and interest, and in addition to that the $1,500 which the plaintiff had paid. From the manner in which this case was submitted to the jury, it is impossible to say upon what they based this verdict. If we look through the whole case we may imagine that it was because in some way the jury were impressed by the fact that if the contract had been executed by the defendant, and if the plaintiff had managed to get -the money to pay the defendant- for the property and had got a good title to it, he could in some way or other have disposed of it to an advantage and thus receive a benefit that would be equal to the $6,000 which the jury allowed him as compensation. An examination of the testimony shows that this must have been in tire minds of the jury in coming to the conclusion that they did. W.e have to look to the evidence to see whether there is anything shown from which it would follow that the plaintiff sustained any damage by his failure to get the contract, as distinct from his failure to get a conveyance of the property under the option reserved to him, except the sum of $1,500. which he had paid to the defendant. The intent - of the parties to this agreement is clear enough. By it the defendant agreed to give to the plaintiff an option to purchase the property in consideration of the payment to him of $1,500. That money was paid, and it was the consideration for the agreement. This agreement also contained the following -provision: “ I agree upon receipt of written notice -of such election at least fifteen days previous to the expiration of the time -aforesaid (December 31,1892), to execute to said Boyd, or whomsoever he shall name in writing in such notice, a contract for the conveyance of the said premises, on payment of eighty-five thousand dollars in cash, on the fifteenth day of January, 1893.” The only construction that.I can give to this clause in connection with the agreement for -an option, is that the plaintiff was to have an option of purchase up to December 31,1892, but in addition that he should be entitled to a formal contract for the sale of the premises, the deed to be delivered and the contract to be complied with on January 15,1893, if sixteen days prior to the thirty-first day of December he notified the defendant in writing of an elec — 571 — tion to require it. But we search the evidence in vain for any proof that the obligation of the defendant to convey, as distinct from the obligation to give a contract of sale, was ever broken. The plaintiff never tendered to the defendant the $85,000 in cash, and never demanded from the defendant a deed of the premises. So there was no breach of any covenant or contract to convey. It is alleged, however, and a majority of the court are of the opinion, that there was a breach of the covenant to make a contract, and that being so, the plaintiff ■ was entitled to the damages which he sustained in consequence of that breach. On the 14th day of December, 1892, and more than fifteen days prior to the thirty-first day of December, the plaintiff served upon the defendant á notice in which he stated that .he had elected to purchase the property as provided for by the agreement or option of October 20, 1892; and further, that he (the plaintiff) submitted to the defendant a contract in duplicate, in accordance with the terms of the said option, and demanded that the same be executed by him (the defendant). This contract, submitted by the • plaintiff, the defendant returned with alterations, which the plaintiff refused to accept, and finally the defendant took a position which was not justified by his agreement, and his refusal to execute this contract was a breach of such agreement. But this was not a breach of the agreement to sell and convey. As before stated, the consideration was never tendered to the defendant, and no deed was ever demanded from him in 'compliance with the option of purchase. On the contrary, on the day fixed as the date at which the contract which the defendant agreed to execute should provide that the title be passed and the deed be delivered, the defendant did tender to the plaintiff a deed which would have complied with the contract if the • contract had been executed. It further appears from the evidence of the plaintiff that, at the. time of this alleged breach by the defendant, the plaintiff was not in a condition to comply with the contract had it been signed, and there is no evidence that at any subsequent time he was in a condition to comply with such contract and to pay the purchase money. He testified that he expected to provide for the purchase money by contributions of particular persons, some of whom he named; that at this time, on the sixteenth day of December, he did not have the — 572 — signature of all these men; he had the signatures of men for $30,500; that he intended to raise $57,500, but that he did not have promises for the remainder of the purchase' price; that he expected to get the balance over and above this $57,500 by putting a mortgage on the property. Ho mortgage on the property, however, had been procured. Ho one had agreed to lend the money upon the property, and it is not pretended that the plaintiff himself had the means to pay this purchase, price. The evidence as furnished by the plaintiff, himself clearly showed that he was not, at the time of the refusal of the defendant to execute this contract, and never was at any subsequent time, in a condition to pay the purchase price of this property, never had the purchase money and never had people who had even agreed to furnish him with the purchase money. Under such circumstances, the value of the property itself, or what it would have been worth to him had he been able to purchase and pay for it, was immaterial. So far, therefore, as any agreement between the parties to convey the property existed by virtue of the original agreement, or the option, and the acceptance' of that option by the plaintiff, it was the plaintiff who was in default, and not the defendant. We come back'to the question as to what damage the plaintiff sustained by reason of a refusal on the part of ,the-defendant to execute the contract tendered to him by the plaintiff in December. There being no proof of a failure of the defendant to convey, when by the contract as between him. and the plaintiff he was bound to make such a conveyance, it was incumbent upon the plaintiff to prove, that he sustained damage by reason of the refusal of the defendant to execute the contract. We all agree that there was no proof of such damage; no proof by the plaintiff that the con- . tract, if executed, would have been of any value; no proof that he lost anything by the failure of the defendant to execute such a contract ; nor was there a particle of evidence from which a jury could ascertain in what position this plaintiff would have been had the contract been executed. This is not one of the .cases in which, from the nature of the contract made, there is great difficulty in ascertaining what damage was sustained in consequence of a breach. Here there -is no difficulty -in proving the value of such a contract; and the burden of proof was upon the plaintiff to show not only that damage was sustained, but facts from which the jury could — 573 — ascertain just what such damage was. Here the plaintiff has failed to sustain such burden. There remains the question as to the $1,500 paid by the defendant to the plaintiff, which, under the charge of the court below, the ■jury found that the-defendant should repay to the plaintiff, and we think that the plaintiff is entitled to recover from the defendant that sum. It is true that this $1,500 was paid as the consideration for the execution by the defendant of the option of purchase ; but, by the terms of contract itself, it is provided that in case the plaintiff should elect to purchase, then the $1,500 is to be applied iqson the payment of $85,000 which the plaintiff was to make to the defendant as a condition for the execution and delivery of a conveyance of the property; but, in case the plaintiff elected not to purchase, then the $1,500 was to belong to the defendant. Under this agreement as it stands it is quite clear that the parties contemplated that this $1,500 should belong to the defendant, to be credited by him upon the purchase money if the plaintiff elected to purchase ; but if the plaintiff elected not to purchase, then it was to belong to the defendant absolutely. The plaintiff elected to purchase. The defendant refused to execute the contract provided for in the agreement, and for that reason the purchase fell through. No matter just what form the disagreement between the parties assumed, it was caused by a breach of the defendant’s agreement to execute this contract. That being so, it seems quite clear that, although there was no technical breach by the defendant to convey, he, by his refusal to execute the contract, made the acceptance of the option by the plaintiff of no avail, and there was thus no consideration for the payment of the $1,500 to the defendant and no right on his part to retain it. It is the plaintiff’s money. The conditions upon which the defendant was to retain it, viz., an acceptance of the option by the plaintiff, followed by a conveyance by the defendant, when it was to be retained by the defendant as a part of the consideration money to be paid, or, second, the failure of the plaintiff to elect to purchase, which has not arisen. The plaintiff had elected to purchase and demanded a contract, which the defendant refused ; and no purchase has been made or deed delivered. The sum of money, therefore, belongs to the plaintiff, and he is entitled to a verdict for it, with interest. — 574 — On the whole case, and upon the evidence as presented before the court below, we thinlc that the plaintiff was entitled to a verdict for' the-$1,500 and interest, and to nominal damages for a breach of the . agreement to execute the contract -to convey. The judgment is, therefore^ reversed and a new. trial ordered, unless the" plaintiff stipulates to reduce the amount recovered by the judgment to the sum of $1,500 and interest from October 20,1892, with costs in the court below including an allowance of five per cent—namely, to the sum of $2,208.78—in which case the judgment as- so modified will be-affirmed, without, costs to either party upon this-appeal. In case such stipulation is not made, a new trial will be ordered, with costs to the appellant to abide the event. Van Brunt, P. J., Barrett and Rumsey, JJ., concurred.