Page v. McDonnell , 46 How. Pr. 52 ( 1873 )

Spences, J.,

who delivered the opinion of the court, says: “ To say that the subsequent sale of the land gives a.right to the plaintiffs to recover back the money paid on the contract, would, in effect, be saying that the defendant could never sell it without subjecting himself to ah action by the plaintiffs. The plaintiffs peremptorily refused to fulfill the contract; it was in vain, therefore, to keep the land for them. The plaintiffs cannot by their wrongful act impose upon the defendant the necessity of retaining property when his exigencies may require him to sell.”

XIV. Besides, in any aspect of the case, to entitle the plaintiff to recover back the portion of the purchase-money paid, he should have tendered the residue of the purchase-money, and demanded a deed, so as to put the defendants in default, which has not been done (Hudson agt. E. & J. Swift, 20 Johns. R., p. 26).

XV. This result renders it unnecessary to consider the plaintiffs exception to the exclusion of the testimony offered by him to show that about the months of February and March, 1869, the property in question went up in value and could have been sold at an advance. But it is well settled that only nominal damages are recoverable for the failure by a vendor to perform an executory contract for the conveyance of land made in good faith, and broken without fraud by reason of his inability to make a good title (See Conger agt. Weaver, 20 N. Y. R., p. 140; Pumpelley agt. Phelps, 40 id., p. 66; Mack agt. Patchin, 42 id., p. 172).

XVI. The judgment appealed from should be affirmed, with costs.

By the Court, Ingraham, P. J.

The plaintiff had a contract to purchase land of defendant, on which he made a payment. When the time fixed for delivering the deed arrived, the plaintiff objected to take it on account of an incumbrance of an assessment upon the property, but said he was willing to take the same when the defendants could give a deed according to the contract.

The assessment was paid and the deed tendered on the next day. The plaintiff again refused to take the title on account of leases which he said were on the property.

The justice found that such leases were known to plaintiff at the time of the purchase.

The tender of performance by the defendants, and refusal of plaintiff to accept the deed, terminated the contract on the part of the defendants, if there were no incumbrances on the property at the time.

It was not a rescission of the contract on their part, which required a repayment of the purchase money to make such rescission valid.

It was a discharge by the plaintiff of the defendants’ obligation, and did not entitle him to a repayment of the money paid on making the contract. Any such rule would enable a purchaser on the tender of a deed to refuse to complete his purchase, and then to claim back payment of the amount originally paid to bind the contract.

If neither party seeks to enforce the contract on the day fixed for performance, equity will give relief afterwards; but where the vendor tenders the deed and demands performance on the day, and the vendee refuses, he cannot afterwards seek in equity to be relieved from his own voluntary refusal to perforin his contract.

The case of Ketchum agt. Evertson (13 J. R., 359) is in point, both as to the rights of the plaintiff to have a decree for specific performance or to recover back the money paid by him on account of the contract.

The only inquiry, then, would be whether there was anything in the objection made by the plaintiff as to the leases on the premises until May first ensuing.

The justice found that the plaintiff knew of s,uch leases at the time of making the contract, and they were not considered as incumbrances.

There was no other objection made, and the finding on this point is conclusive against the plaintiff.

We think there is nothing in the exceptions on the trial, and that the judgment should be affirmed.

Wm. L. Lbabhed and Jiro. B. Beady, JJ., concurred.