Stumpf v. Halstead Land

59 Misc. 529, 110 N.Y.S. 838

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1908
• Status: Published

Opinions

Greenbaum, J.

In his complaint the plaintiff alleges that, while he was a minor, and on the 31st day of October, 1906, his mother, Annie Stumpf, “ entered into a contract in writing for and in behalf of the plaintiff herein and as his agent, with the defendant, whereby the said Annie Stumpf, representing herself as the guardian of the plaintiff herein,” agreed to purchase of the defendant two certain lots of land for an expressed consideration, and to build thereon a certain dwelling-house at an agreed price.

He further alleges the payment to his mother, Annie Stumpf, as his agent, of various sums of money, aggregating $535, “ which the said Annie Stumpf paid over ” to the defendant “ in pursuance of the aforesaid contract and on account of the purchase price as therein stated.

Then follow allegations that plaintiff attained his majority on or about September 12, 1901; that he rescinded his said contract; made -a demand upon the defendant for the return to him of said sum of $535, and that he stood ready “ to tender back to the defendant and hereby does offer to said defendant, The Halstead Land and Development Company, all the benefits, rights and privileges as represented by any contract or contracts, in his (the plaintiff’s) possession by reason of the contract as hereinbefore stated.” Judgment was recovered by plaintiff.

The contract mentioned in the complaint, as matter of fact, was signed by the plaintiff himself, as follows: “ Annie Stumpf, Guardian of George Stumpfbut there can be no question but that his mother permitted him to sign her name to the contract, for the reason that it appeal’s that, at the time fixed for closing title under the contract, the plaintiff and his mother were present and represented by counsel and, on that occasion, a deed of the premises was duly executed to Annie Stumpf, guardian of George Stumpf, and a bond and mortgage and building contract by her duly signed as guardian, to a loaning company called the Halley Land and Improvement Company.

Annie Stumpf had never been appointed guardian of her son.

The legal effect of the transaction was that the written contract was made, not by the plaintiff, but by his mother, described as his guardian; and pursuant thereto defendant vested in her the title to the land which was the subject of the agreement.

The words “ Guardian of George Stumpf ” were merely descriptive, although between himself and his mother plaintiff was in a position to show that the contract was made for his benefit.

The contract with defendant being with the mother of plaintiff, and not directly with himself, it is difficult to understand how plaintiff can maintain an action against the defendant upon the theory of his repudiation of the contract. Plaintiff was not the party named in the contract, and there is nothing for him to repudiate. The defendant doubtless knew that the contract was made in behalf and in the interest of the plaintiff, and that his money was applied in performance thereof; but, nevertheless, the contract was not made with him but with his mother, and whatever claims and rights she may have thereunder, either for herself or her son, must be enforced through her.

The defendant deliberately contracted with one who was capable of making a contract.

He who seeks to rescind a contract must restore what he has received thereunder. It is true plaintiff asserts his willingness to deliver up the “ benefits and rights ” that he has under the contract, but does not tender back the title conveyed to his mother, nor a release of the lands from the mortgage lien to which it meanwhile has been subjected, for the obvious reason that the contract was not made with him and his inability to restore to the defendant that with which it parted.

The effect of a judgment against the defendant would be to compel it to repay the money received under the contract and lose the property which it conveyed thereunder, a manifestly inequitable and unjust result and contrary to the well recognized principles applicable in such cases. Eice v. Butler, 160 N. Y. 578.

The judgment of the lower court cannot be upheld.

Giegerich, J., concurs in the result.