Pirsson v. Arkenburgh

8 N.Y.S. 543, 1890 N.Y. Misc. LEXIS 1666

• Court: The Superior Court of the City of New York and Buffalo
• Decided: February 6, 1890
• Status: Published

Opinion

Freedman, J.

Upon the whole case, the contract under which $1,700 remained on deposit as security for the payment of the assessment, subject to-which Willett Bronson conveyed the lots to the defendant, must be gathered from four different papers executed by Bronson. These papers are: (1) The contract of sale; (2) the deed to defendant; (3) the agreement between Bronson and the New York Life Insurance Company for the deposit as security; and (4) the agreement between Bronson and the defendant. They are so intimately eonected that they must be construed together, in order to ascertain-what the real contract was. When thus construed, they clearly establish a contract of indemnity, and not a contract for the absolute forfeiture of the whole deposit in excess of what might be necessary to pay the assessment, in, case Bronson failed to pay or to procure the vacation of the assessment within one year. A forfeiture is not favored in the law, and it is therefore a rule, in the construction of a contract under which forfeiture is claimed, that, if it can be fairly done, the conclusion shall be avoided that a forfeiture was intended. In the case at bar, the conclusion can be readily avoided, for the surrounding circumstances fairly show that all that was intended in fact was ample indemnity. The plaintiffs, to whom all the right, title, and interest of Bronson in and to the moneys so deposited were transferred by several assignments, are therefore in a position to maintain the action for the recovery of the balance remaining unexpended after the payment and extinguishment of the assessment by the defendant, and it was error on the part of the trial judge to direct a verdict for the defendant. The judgment and order should be reversed, and a new trial ordered, with costs to abide the event.

Ingraham, J.

I agree with Judge Freedman as to the construction of the contracts. The money deposited with the trust company was Bronson’s, deposited before the contract with the defendant was made, as a fund from which the assessment was to be paid. It is nowhere transferred to defendant, nor is there anything that would show that the parties intended the defendant should be entitled in any contingency to the money. It was provided that, if the assessment was not paid by Bronson in one year, the money should be paid to defendant by the trust company; but it was paid to defendant, as the plaintiff’s money, for the special purpose of repaying defendant the amount that he had been compelled to pay to discharge the assessment, under the covenant contained in the deed. The balance that remained after paying that assessment was still Bronson’s money, and Bronson was entitled to maintain an action for money had and receivéd, to recover such balance. I think plaintiff was therefore entitled to recover, and that the judgment should be reversed.