Divine v. Divine

By the Court, Potter, J. This action being upon a note, between the original parties to it, the consideration could be inquired into upon the trial, and it was subject to the equities existing between the parties. The note was given for a part of the consideration money of the premises described in the executory agreement; was dated the same day ; was part of the same transaction; and may be read and interpreted with the agreement, as a part of it, or as a waiver of its terms, to that extent. The note was a substitute for the payment of the sum therein agreed to be paid at the time of the execution of the deed, and until paid, that part of the article was not performed. It was a collateral, and simple promise to pay the same money that was mentioned in the sealed agreement. Its only real effect was to postpone the payment of the unpaid part of the purchase money, until the day the deed was to be executed. On that day the parties stood in the same relation towards each other, as to their rights, as if the promise in the note had been in the agreement; or, in other words, the plaintiff waived the first payment until the day he was to perform on his part by giving a deed. The defendant having omitted to pay the sums specified [269] in the agreement, at the time they became due; and the plaintiff, after all payments had become due, having brought his action for a part of the purchase money, was bound to prove, on the trial, that before suit brought, he had offered to comply with the agreement on his part; that is, that he had offered to convey the premises to the defendant on receiving the purchase price, or a readiness or willingness to convey. On the 1st day of November, 1868, the whole unpaid purchase money was due; on that day the plaintiff agreed to convey. The payment of the money and the execution of the deed, then, became dependent acts. These facts appeared on the trial, and were uncontradicted. The plaintiff failed to make out a cause of action, and should have been nonsuited. The judge directed the jury to find a verdict for the plaintiff. This was error, and there was an exception. (Beecher v. Conradt, 13 N. Y. 108. Johnson v. Wygant, 11 Wend. 48. Grant v. Johnson, 5 N. Y. 247. Williams v. Healey, 3 Denio, 363.) This view is independent of that taken by the judge on the trial; or the judge on the motion for a new trial. Indeed, the case was tried upon another, and entirely different theory, on both sides. The evidence ruled out, by the judge below, was, much of it, material evidence, and constituted a good defense to the action. The abandonment of the agreement by the plaintiff, his breach of the agreement on his part, by the putting it out of his power to perform, by conveying the premises to another, and putting such other in possession and afterwards bringing an action, in its effect, to compel the other party to perform on his part, has not the savor of equity or of justice to sustain it. I think the court below was mistaken in assuming that the parol evidence offered was intended to change or vary the terms of a sealed agreement. The testimony was competent to show that the plaintiff not only abandoned [270] the agreement on his part, but that there was a failure of consideration of the note sued upon, in that the plaintiff actually converted to his own use the consideration for the'promise made by the defendant in the note sued upon; and that the plaintiff" had done acts that estopped him from prosecuting the defendant for the consideration of the note. [Third Department, General Term, at Plattsburgh, July 5, 1870. If these views, or either of them, are sound, the order of the county court, ordering a new trial, should be affirmed, with costs to the defendant. Order affirmed; Miller, P. J., and Potter and Parker, Justices.]