Buess v. Koch

52 How. Pr. 478

• Court: New York Supreme Court
• Decided: October 15, 1875
• Status: Published

Opinion

Van Vorst, J.

If the defendant has broken his contract with the plaintiff, he is liable in damages, the result of the breach. It is not necessary now to determine the amount of these damages, nor to decide whether or not the plaintiff will in the end be entitled to recover the specific damages he claims in his complaint. The damages will be determined on the trial. On the breach of a valid contract, the plaintiff is entitled to some damages (Devendorf agt. West, 42 Barb., 227).

The defendant agreed to pay for the premises on or before the expiration of five years from the date of the contract. This he failed to do. It is true that he was thus to pay upon the plaintiff executing to him a good and sufficient deed of the premises. The acts were to be concurrent.

The demurrer admits the readiness and willingness of the plaintiff to convey. I do not think, under the statements in the complaint, that the defendant can object that no formal . tender was made to him in person.

Before the expiration of the time limited by the contract, the plaintiff applied to defendant to name a time and place . to fulfill, and expressed his own readiness to convey. As no time or place was mentioned in the contract, this was a proper thing for the plaintiff to do; and good faith, it would seem, called upon the defendant to answer the application in some manner. He remained silent. This is a strong intimation that he did not mean to pay and take the property.

The plaintiff shows that afterwards he made reasonable efforts to find and communicate with .the defendant to make a formal tender. He had his conveyances prepared for the purpose, but through the defendant’s acts and omissions the plaintiff’s efforts were unavailing. I think the defendant’s-acts and omissions waived a formal tender.

There should be judgment for the plaintiff on the demurrer, with leave to defendant to answer on payment of costs.