Grover, J.
The plaintiff not having given notice to the defendant of the assignment of the contract by Young to him, and the defendant having no knowledge thereof, plaintiff is bound by the subsequent acts and dealings between ,the defendant and Young in relation thereto. The judge finds, in effect, that no such contract as is alleged in the complaint was ever made between Young and the defendant. This finding is sustained by the positive testimony of the defendant, which was corroborated by the testimony of the witness, Guernsey, and by various circumstances proved by other evidence. In his third finding, the judge says there are errors of moment in the alleged copy of the contract, introduced in evidence by the plaintiff, and points out two; one very material, and prejudicial to the defendant; the other comparatively slight, and favorable to him. The fourth finding expressly says, in effect, that the contract sued on (a copy of which was introduced by the plaintiff) was not the contract made between Young and the defendant. In the fifth, sixth and seventh findings is a statement of the negotiaiions of Young and the defendant, resulting in a contract, pursuant to which Young conveyed his interest in the Doane property to the defendant, and the latter executed a deed to the former of the lands in question and certain specified mortgages thereon, were executed by Young to the defendant; all of which were placed in the hands of a third person in escrow, to be delivered to the parties respectively upon payment by Young to the defendant of about $10,400. These findings are in accordance with the testimony of the defendant and of the witness Spier, and show that credit was given to this testimony, and not to that of the witnesses introduced by the plaintiff. These facts must be regarded as true by this court, having been found in accordance with testimony tending to prove them; as no power is given to this court to pass upon the weight of conflicting evidence. The General Term had such power, and it was its duty to examine the question; and, if the result was a conviction that the finding was not in accordance with truth, to reverse the
judgment for error of fact and direct a new trial. The judge having found that no such contract as that alleged in the complaint was ever made between Young and the defendant, and the judgment founded thereon having been affirmed by the Supreme Court, the judgment dismissing the complaint must be affirmed by this court, unless the plaintiff was entitled to relief, founded upon the contract which the judge finds was made between Young and the defendant for the sale, by the latter to the former, of the lands in question. Although this contract differs, in some of the terms, materially from the one set out in the complaint, yet, as it is substantially set out in the answer and found by the judge, such relief, if any, may be given thereon as the other facts will warrant. The interest in this contract passed to the plaintiff under the assignment of Young to him, if he so elected.
(The Oneida Bank
v.
The Ontario
Bank, 21 N. Y., 490.) This contract was negotiated in the spring of 1859, and, in substance, was an agreement by the defendant to sell and convey to Young the property in question, in consideration of the conveyance, by the latter to the former, of his interest in what was known as the Doane house, and of mortgages to be given by Young to the defendant upon the property in question.of $11,000, and the payment to him of obligations assumed by Young to the defendant of about $10,000, and a note of four hundred and some doll ars, then given by Young to the defendant. The Doane property, the evidence shows, was then incumbered to within about $7,000 of its value. The property in question was incumbered by mortgages to the amount of $40,000, subject to which the defendant was to convey it to Young and subject to which the mortgages of $11,000 were to be taken by the defendant. No precise time was fixed for the payment of the money or the exchange of the papers, but the former was to be cotemporary with or precede the latter. Young, under the contract, was to receive the future rents and pay the incumbrances. Young did receive the rents until September thereafter; when, failing to pay the interest accruing upon the incumbrances and the money
agreed to be paid to the defendant, the latter, notified the tenants to pay the rents .subsequently accruing to him, of which -Young had notice. The defendant requested Young about that time to close the transaction.. Young being unable to sell the property or otherwise pay the money, he and the defendant agreed to have the property sold at auction in parcels, at which either of the parties were to be at liberty ■ to bid. It was accordingly advertised and sold in the 'fall of 1859, and the sale was attended by Young and an agent of the defendant; and the property, except a small parcel, was bid in for the defendant at a-sum less than the incumbrances then existing thereon, and the mortgages to be given thereon and the money to be paid by Young to the defendant. The counsel for the appellant insists that the defendant was, under the contract, a trustee of the property for Young, and that a trus-' tee cannot discharge himself of his trust by purchasing it in at a sale'controlled by himself, and cites'authorities establishing these positions. He, therefore, insists that the sale can have no effect upon the rights of the parties; or, at all events, it was voidable at the election of Young, who, in a short time thereafter, gave notice to the defendant that he should insist upon the contract". It is unnecessary to .determine whether Young might not, by prompt action in tendering performance of’ the contract on his part, have enforced performance by the defendant. As he did not do this prior to such sale, Young had notice that the defendant • required performance by him without further delay. The sale was resorted to by mutual agreement for the purpose of closing the transaction. When Young ascertained that the property sold for less than enough to satisfy the defendant what he was to receive upon the contract and elected to avoid the sale, he was aware that the defendant would acquiesce in no further delay. The defendant continued in possession of the property, and neither Young nor the plaintiff, of whose interest the defendant knew nothing, did anything whatever toward the performance of the contract for about three years and eight, months, when the plaintiff appeared, and, claiming under an assignment made
to Mm by Young in 1859, demanded of the defendant performance of the contract set out in the complaint, but did not offer to pay the money .payable to, the defendant under the contract found by the judge. The property, at the time of making the contract, according to the testimony of Young,was worth but little more than the incumbrances thereon, and the sum to be paid by Young to the defendant therefor, exclusive of- the conveyance of the interest in the Doane property, but his testimony further shows that its value was largely enhanced between that time and the trial. The cases cited by the counsel for the appellant do. not apply to the contract as found by the judge. The counsel endeavors to show that they do apply to, and that the plaintiff is entitled to a specific performance of the contract set out in the complaint.
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Grover, J.
The plaintiff not having given notice to the defendant of the assignment of the contract by Young to him, and the defendant having no knowledge thereof, plaintiff is bound by the subsequent acts and dealings between ,the defendant and Young in relation thereto. The judge finds, in effect, that no such contract as is alleged in the complaint was ever made between Young and the defendant. This finding is sustained by the positive testimony of the defendant, which was corroborated by the testimony of the witness, Guernsey, and by various circumstances proved by other evidence. In his third finding, the judge says there are errors of moment in the alleged copy of the contract, introduced in evidence by the plaintiff, and points out two; one very material, and prejudicial to the defendant; the other comparatively slight, and favorable to him. The fourth finding expressly says, in effect, that the contract sued on (a copy of which was introduced by the plaintiff) was not the contract made between Young and the defendant. In the fifth, sixth and seventh findings is a statement of the negotiaiions of Young and the defendant, resulting in a contract, pursuant to which Young conveyed his interest in the Doane property to the defendant, and the latter executed a deed to the former of the lands in question and certain specified mortgages thereon, were executed by Young to the defendant; all of which were placed in the hands of a third person in escrow, to be delivered to the parties respectively upon payment by Young to the defendant of about $10,400. These findings are in accordance with the testimony of the defendant and of the witness Spier, and show that credit was given to this testimony, and not to that of the witnesses introduced by the plaintiff. These facts must be regarded as true by this court, having been found in accordance with testimony tending to prove them; as no power is given to this court to pass upon the weight of conflicting evidence. The General Term had such power, and it was its duty to examine the question; and, if the result was a conviction that the finding was not in accordance with truth, to reverse the
judgment for error of fact and direct a new trial. The judge having found that no such contract as that alleged in the complaint was ever made between Young and the defendant, and the judgment founded thereon having been affirmed by the Supreme Court, the judgment dismissing the complaint must be affirmed by this court, unless the plaintiff was entitled to relief, founded upon the contract which the judge finds was made between Young and the defendant for the sale, by the latter to the former, of the lands in question. Although this contract differs, in some of the terms, materially from the one set out in the complaint, yet, as it is substantially set out in the answer and found by the judge, such relief, if any, may be given thereon as the other facts will warrant. The interest in this contract passed to the plaintiff under the assignment of Young to him, if he so elected.
(The Oneida Bank
v.
The Ontario
Bank, 21 N. Y., 490.) This contract was negotiated in the spring of 1859, and, in substance, was an agreement by the defendant to sell and convey to Young the property in question, in consideration of the conveyance, by the latter to the former, of his interest in what was known as the Doane house, and of mortgages to be given by Young to the defendant upon the property in question.of $11,000, and the payment to him of obligations assumed by Young to the defendant of about $10,000, and a note of four hundred and some doll ars, then given by Young to the defendant. The Doane property, the evidence shows, was then incumbered to within about $7,000 of its value. The property in question was incumbered by mortgages to the amount of $40,000, subject to which the defendant was to convey it to Young and subject to which the mortgages of $11,000 were to be taken by the defendant. No precise time was fixed for the payment of the money or the exchange of the papers, but the former was to be cotemporary with or precede the latter. Young, under the contract, was to receive the future rents and pay the incumbrances. Young did receive the rents until September thereafter; when, failing to pay the interest accruing upon the incumbrances and the money
agreed to be paid to the defendant, the latter, notified the tenants to pay the rents .subsequently accruing to him, of which -Young had notice. The defendant requested Young about that time to close the transaction.. Young being unable to sell the property or otherwise pay the money, he and the defendant agreed to have the property sold at auction in parcels, at which either of the parties were to be at liberty ■ to bid. It was accordingly advertised and sold in the 'fall of 1859, and the sale was attended by Young and an agent of the defendant; and the property, except a small parcel, was bid in for the defendant at a-sum less than the incumbrances then existing thereon, and the mortgages to be given thereon and the money to be paid by Young to the defendant. The counsel for the appellant insists that the defendant was, under the contract, a trustee of the property for Young, and that a trus-' tee cannot discharge himself of his trust by purchasing it in at a sale'controlled by himself, and cites'authorities establishing these positions. He, therefore, insists that the sale can have no effect upon the rights of the parties; or, at all events, it was voidable at the election of Young, who, in a short time thereafter, gave notice to the defendant that he should insist upon the contract". It is unnecessary to .determine whether Young might not, by prompt action in tendering performance of’ the contract on his part, have enforced performance by the defendant. As he did not do this prior to such sale, Young had notice that the defendant • required performance by him without further delay. The sale was resorted to by mutual agreement for the purpose of closing the transaction. When Young ascertained that the property sold for less than enough to satisfy the defendant what he was to receive upon the contract and elected to avoid the sale, he was aware that the defendant would acquiesce in no further delay. The defendant continued in possession of the property, and neither Young nor the plaintiff, of whose interest the defendant knew nothing, did anything whatever toward the performance of the contract for about three years and eight, months, when the plaintiff appeared, and, claiming under an assignment made
to Mm by Young in 1859, demanded of the defendant performance of the contract set out in the complaint, but did not offer to pay the money .payable to, the defendant under the contract found by the judge. The property, at the time of making the contract, according to the testimony of Young,was worth but little more than the incumbrances thereon, and the sum to be paid by Young to the defendant therefor, exclusive of- the conveyance of the interest in the Doane property, but his testimony further shows that its value was largely enhanced between that time and the trial. The cases cited by the counsel for the appellant do. not apply to the contract as found by the judge. The counsel endeavors to show that they do apply to, and that the plaintiff is entitled to a specific performance of the contract set out in the complaint. The answer to this is, that the -judge has found that such a- contract never was made; that by the one in fact made, Young, in addition to giving the mortgages, was to pay the defendant between $10,000 and $11,000 in cash. As no precise time was fixed for this payment, it was payable in a reasonable time or upon request. This request was made in September, 1859, or thereabouts, prior to the agreement to sell the property at auction. Under this state of facts a delay of three years and upwards, without any excuse therefor, was such laches as will preclude a specific performance of the contract. (1 Story’s Eq., §§ 771, 776, and notes and authorities cited; Willards Eq., 292.) When by laches the remedy at law is barred and the right to a specific performance is forfeited, there can be no recovery of what has been paid upon the contract. This view disposes of the questions arising upon the refusal of the judge -to find further facts. No further -facts could have been found from the evidence given that could have been of any benefit to the plaintiff. Those found determined the fights of the parties. The judgment appealed from must be affirmed.
All concur.
Judgment reversed.