Stammer v. Harmon

112 A.D. 794, 99 N.Y.S. 519, 1906 N.Y. App. Div. LEXIS 777

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 1906
• Status: Published

Opinion

Parker, P. J.:

The question presented to us is, whether the return of .the justice; as it appears in this record before us, shows any error for which the verdict and judgment rendered in his court should be reversed by. the County Court. So far as the question of the-justice’s jurisdiction to hear the case is concerned we may Conclude, without discussion, that the justice’s ruling thereon was correct, since no appeal has • been taken therefrom by the defendant, and since the view which we take of the memorandum in question renders such ques; tioh immaterial. No ruling-was made- against the defendant on the trial, except the refusal to nonsuit; and so the question is narrowed down to Whether Upon the facts proven by the plaintiff, he had shown a cause, of action against the defendant.

The memorandum of September 20, 1901, is not entirely a clear one, yet an examination of it-, in my judgment, shows that it was not intended as a contract on defendant’s part to purchase, and on W. W. Stammer’s part to sell the farm in question. It was an undertaking on W. W. Stammer’s 'part that, he would* within one year, acquire the title to the farm,, and -as soon as -he had such title, and so was authorized ■ to sell and convey,;that -he would then enter into a contract to sell and convey it to the defendant; and defend^ ant on his part then agreed that he would enter into a contract to •pui'chase said farm for the price and upon the terms as to payment which are therein, stated. The defendant had beeii living on the-farm, as a tenant, since November 1, 1899 (a tenant of whom does not appear, possibly of Stammer, who may have had a contract for the place, although that does not appear), and possibly may have-cut some pulp wood and timber that it was contemplated should be applied upon the purchase price of the premises in the manner stated in this memorandum ; and hence they agreed that the sale should be. considered as made November 1, 1899; and, as I interpret this memorandum, it was intended that the contract that was to bp given by W. W. Stammer as- soon as he acquired his title, should be dated back to November 1, 1899.- Neither party intended that amy payments should be made upon this memorandum, or . become due thereon, but that the provisions therein stated should be copied into and made the terms of. the. new contract to be thereafter given by Stammer. That should be dated November' 1, 1899, and' the payment of fifty dollars down ” was intended to mean a payment of $50 as of that date, and further payments of $50 each were to be made for the three successive following years from that date, viz., up to ¡November 1, 1902. By that date the title would have been acquired and the new contract ready for execution, and all payments then accrued would be due upon and indorsed on such new contract.

In such interpretation of this memorandum, it is plain that the procuring of title and delivery and execxition of the new contract, so called, was a condition precedent to any demand for any part of the purchase price of sxich farm. If Stammer had procured the title and tendered such contract, the defendant would then have been bound to accept and execute it, and then make the payments as therein specified, for by signing the memorandum above set forth he had agreed to do so. But in such memorandum defendant nowhere agi'ees to purchase the premises, or to make any payment thereon. It is to be notieed-that he nowhere therein agrees to do anything. He merely signs such memorandum, and, therefore, the •extónt of his obligation thereon is to accept and execute the contract when tendered to him — that it all — and when he has done that, then for the first time he has undertaken to pxxrchase the farm and make the payments as specified in such contract.

It is not claimed that W. W. Stammer ever tendered to defendant any contract whatever, such as by the memorandum he had agreed to. do after procuring title to the farm, much less is it claimed that any such contract'had ever been executed by the defendant. No part of the purchase price of such farm had ever become due apd owing from defendant to W. W. Stammer, or to any assignee of his. Their plan that Stammer would get title to the farm and contract it to the defendant had entirely fallen through. It does not even appear that he, Stammer, got title to the farm within the year. For these reasons, not ’even W. W". Stammer would have had any right to recover anything whatever upon such memorandum from the defendant, and -the jury were correct in finding that the plaintiff had no claim against him thereon. Judgment on their verdict should have been affirmed, instead of being reversed, by the County Court.

The judgment appealed from must, therefore, be reversed, and the judgment of the justice must be affirmed, with, costs in the court below and of this appeal.

All concurred.

Judgment of the County Court reversed, and judgment of the justice affirmed, with costs in the court below and of this appeal.