Wormser v. Garvey , 11 N.Y. Sup. Ct. 476 ( 1875 )

Davis, P. J.:

This case was carefully tried by the learned judge at Special Term, and his findings of fact and conclusions of law, as well as the reasons expressed in his able and elaborate opinion, seem to us to be equitable and just.

In suits of this character there can be no fixed and arbitrary rule by which all cases are to be determined. Each case must depend and he disposed of upon its own circumstances. When and under what circumstances time is or is not of the essence of the contract, are questions which have received so much and such elaborate discussion, that an attempt to shed further light upon them is quite likely to result in an effort “ to darken counsel.” (Delavan v. Duncan, 49 N. Y., 485 ; Hubbell v. Von Schoening, id., 326; Finch v. Parker, id., 1; Duffy v. O'Donovan, 46 id., 223 ; Peters v. Delaplaine, 49 id., 362; Myers v. De Mier, 52 id., 647; Merchants' Bank v. Thomson, 55 id., 7.)

Within the established rules of equity we think time was not of the essence of the contract between the parties to this action at the time the same was made and delivered. It was however material, and especially so to the vendor, who was anxious to realize the consideration for the purpose of meeting pressing debts. The time for performance was fixed for an early day. It was for that reason that so trifling a sum as $500 was accepted as the payment down; and the parties took particular and unusual pains to provide for a rescission of the contract and the return of the $500, “ in case the title to the premises is defective, or in ease the party of the first part shall be unable to give at the time [mentioned in the contract] a good and sufficient title to the premises; ” and, also, to stipulate for the same consequence, “in case any legal proceedings in the nature of an attachment, injunction or otherwise, shall, in any manner, prevent the said party of the first part from conveying or making title to the said property, or shall incumber the title thereof.”

The parties thus stipulated in substance for the consequence of an actual condition of things, in praesenti, affecting the title of the lands, the fear of which, as a possibility in futuro, led the vendee to refuse to perform the contract on his part.

It might well be claimed that if the plaintiff regarded the title as defective by reason of the contingencies which he feared and asserted, and which arose without any fault of defendant, his taking that ground and refusing to perform, except upon the conditions he imposed, would give defendant the right, by the terms of the contract, to rescind and return the money paid.

It appears that the parties met from time to time; that the defendant was ready with her deed, and tendered performance on payment of the consideration ; that the plaintiff made it an express condition of his performance, that the defendant and her agent should each make an affidavit in relation to the solvency of the. defendant’s husband and grantor, the extent of his indebtedness, and the amount of his property over and above his debts, which they refused to make, and could not, as they assert, with truth, have made; and finally, that at the last meeting the defendant gave notice that if the deed was not then accepted and the money paid, she should regard the contract as at an end, and tender back the $500, and rescind the agreement. The plaintiff refused to accept the deed, persisting in his demand for the affidavits, and thereupon the defendant offered back the' $500, and declared the contract at an end.

We think the plaintiff had no right to impose the condition of making the affidavits on the defendant and her agent, and that his doing so was equivalent on his part to denouncing the title as defective, and thereby giving to defendant the right of rescission as stipulated for in the agreement. But if this be not so, the plaintiff had, in our judgment, no right to impose such a condition, and, on-refusal of defendant to comply with it, to resort to a court of equity to enforce the contract with the condition, or if he failed in the latter, to enforce specific performance of the contract itself. To allow purchasers of real estate to make such or similar conditions, and to speculate upon the chances of enforcing them by suit in equity, and all the while preserve the right to enforce specific performance of the agreement without the conditions, would not only open a new branch of equity jurisdiction, but operate to give an undue advantage to one party to such contracts, and render the rights of the other uncertain and subject to the caprice or necessities of the vendee.

We think the judgment should be affirmed, with costs.

Daniels and Brady, JJ., concurred.

Judgment affirmed