Pearsoll v. Frazer , 14 Barb. 564 ( 1853 )

By the Court, Edwards, J.

The first question presented is, whether the covenant to procure an extension of the lease is dependent or independent.

It appears from the agreement, that the defendant was to purchase the fixtures and furniture of the premises in Eultonstreet, for the sum of $1800, and payment was to be made by the defendant’s executing a mortgage upon his interest in all the property situated in the city of New-York, of which his father died seised. The agreement then provided that the plaintiff should procure for the defendant an extension of the lease of the premises for three years from the first of May then succeeding. It contained a further provision, that it was understood by the parties, that if the title of the defendant to the estate which he was to mortgage should be imperfect, the plaintiff should be at liberty to annul the agreement, and the defendant should surrender the premises, and the plaintiff was to indemnify the defendant for all damages which he might suffer in case the plaintiff could not procure an extension of the lease. According to the terms of the agreement, the fixtures, &c. were to be sold for $1800. That was the price agreed upon by the parties, and the mortgage was to be given to secure that amount. The covenant to procure an extension, is neither by express terms, nor by implication, made any part of the consideration. It is an entirely independent matter. And when the parties provide that-the plaintiff may annul the agreement if the defendant’s title is found to be defective, they make no similar provision in favor of the defendant, in case the plaintiff could not procure an extension of the lease. On the contrary, they exclude by implication any such conclusion; for they provide that in such case the plaintiff shall indemnify the defendant in damages.

It seems to me that, in adopting the rule which was laid down in the case of Tompkins v. Elliot, (5 Wend. 496,) that in order to ascertain whether covenants are dependent or independent, we must "construe them according to the meaning of the parties and the good sense of the case, the conclusion here must be that the covenant to obtain a renewal of the lease, is independent of the other covenants contained in the agreement.

The next objection taken to the declaration is, that the second count does not alledge a sufficient demand of the mortgage, mentioned in the agreement. In the cases which were cited on the argument, Connelly v. Pierce, (7 Wend. 129,) Blood v. Goodrich, (9 Id. 68,) Fuller v. Hubbard, (6 Cowen, 9,) the rule was laid down that there should be two demands, in order to give the ■party a reasonable time to prepare and execute a deed, unless a deed drawn up in proper form should be offered for execution, or there should be a positive refusal on the first demand. But this is laid down as a rule of evidence, and not as a rule of pleading.

The next objection taken is, that no time of performance is averred in either of the counts demurred to. In the case of Osborn v. Lawrence, (9 Wend. 135,) where the contract, as in this case, did not contain any time for performance, it was held that the declaration was bad on special demurrer, because it did not aver that the act was to be done either upon request, or within a reasonable time, according to the legal effect of the agreement. But this is a defect in form merely. It is provided by section 176 of the code, that the court shall, in every stage of an action, disregard any error or defect in the pleadings which shall not affect the substantial rights of the adverse party. And section 459 declares that the provisions of the code shall apply to future proceedings in suits heretofore commenced.

[New-York General Term, February 7, 1853.

Edwards, Mitchell and Roosevelt, Justices.]

The plaintiff is entitled to judgment on the demurrer, with leave to the defendant to plead in twenty days; and as the demurrer was well taken at the time it was filed, without costs.