Stephens v. Buffalo & New York City Rail Road

By the Court, T. R. Strong, J. Delivery is essential to the validity of a deed or contract; and it is always competent [338] to show by parol that there has not been a delivery. (Roberts v. Jackson, 1 Wend. 478. Clark v. Gifford, 10 id. 310. Gilbert v. N. Amer. Fire Ins. Co., 23 id. 43. The Lady Superior v. McNamara, 3 Barb. Ch. Rep. 375.) There can be no delivery without an acceptance by the party who is to receive it. (Jackson v. Phipps, 12 John. 418. Church v. Gilman, 15 Wend. 656. Crosby v. Hilyer, 24 Wend. 280. Jackson v. Bodle, 20 John. 184. Jackson v. Richards, 6 Cowen, 617.) The proof on the part of the plaintiff, in avoidance of the defense set up, was therefore admissible. It goes to the point, that the paper purporting to be a contract for the sale of the premises in question to the defendants, was not delivered; that it was merely offered to the defendants, but the defendants did not accept it, and the offer was retracted. The proof is, in substance, that the paper was placed in the hands of the agent of the defendants, not as such agent, and not as a contract, but to be presented by him, in behalf of the plaintiff and his associates in the paper, to the defendants, as a proposition for their acceptance or refusal, and to be void as a proposition, unless the defendant should give notice to the plaintiff, of its acceptance, within a time specified ; that such notice was not given within the time; and that afterwards and before any notice of acceptance by the defendants, the plaintiff gave notice to the agent of the defendants, as such agent, that he withdrew the offer. There was no error in the instruction to the jury, that one question was whether the delivery of the paper was absolute, or as a proposition to be submitted to the directors of the defendants. The delivery referred to must be understood to be, having reference to the proof, the putting the paper in the hands of the person who received it, to submit for the plaintiff and the other persons whose names are subscribed to thepaper, as a proposition to the directors. If the paper was handed to that person for the purpose mentioned, it would not, as the learned justice advised the jury in substance, bind the plaintiffs, as a contract, until the defendants accepted it; and until acceptance the plaintiffs might withdraw or rescind it. (Vassar v. Camp, 1 Kernan, 441.) And.a declaration by the plaintiff to the de [339] fendants, that he would not be bound by the proposition, made at any time before acceptance, would, as it was properly held, terminate it. (Roberts v. Jackson, 1 Wend. 478.) [Monroe General Term, Sept. 3, 1855. So far as the learned justice refused to charge as requested, the points embraced in the requests, viewed in connection with the proof made, appear to be mostly, in substance, the negative of the instructions actually given, and I do not perceive that the refusal involves any error. In regard to the points not met by the charge, I think the requests were properly declined. It is undoubtedly true that if the execution of the paper had been completed by a delivery to the agent of the defendants, as a contract, parol evidence of conditions qualifying the delivery would not have been admissible, and the plaintiff would have been bound, although the paper was not signed by the defendants. (Worrall v. Munn, 1 Selden, 229.) And the defendants having by a tender entitled themselves to a deed, might avail themselves of their equitable title as a defense to the action; (Code, §§ 150, 274;) and the contract could not be revoked. But these positions of the defendants are all dependent upon the delivery and complete execution of the paper as a contract. In my opinion a new trial should be denied. Selden, Johnson and T. R. Strong, Justices.]