Hewison v. Hoffman.

motions to dismiss the complaint were properly denied. The judge's charge was proper. The exception at folio 210 was not good, as the questions as to the architect's certificate were out of the case. The exception at folio 267 was not well taken, as the question did not call for the earth removed, but the number of tickets, upon which defendant settled with third parties for cartloads of earth. The exception at folio 285 was not well taken, as the question called for a conclusion. There is no exception at folio 201. The exception at folio 331 does not call for a reversal, because the question allowed to be put to the witness was not in effect answered. The previous answer of the witness (which was not objected to) contained in substance the same testimony as that objected to.

The judgment should be affirmed, with costs.

LARREMORE, Ch. J., and ALLEN, J., concurred.

Judgment and order affirmed, with costs.

CATHERINE M. HEWISON, Respondent, against MARY HOFFMAN, Appellant.

(Decided April 1st, 1889.)

Where, at the time fixed for the performance of a contract to convey property, the same is incumbered, the vendee is excused from attending and tendering performance, and may rescind the contract and recover his deposit and damages for the breach. The fact that the vendor offers to allow the amount of the incumbrances to be deducted from the cash payment to be made will not excuse the default, where the amount of the incumbrances exceeds the amount of such payment. And a subsequent offer by the vendee, to attend at a time and place named to complete the contract, is no defense to an action for the breach, where, before the day named, the vendor has sold the property to a third person.

Hewison v. Hoffman.

APPEAL from a judgment of this court entered upon the decision of the judge at a trial without a jury.

The action was brought to recover $100 deposited with or paid to defendant by plaintiff on the execution of a contract for the sale of real estate by defendant to plaintiff, and for $186 expended by plaintiff in examining title. The complaint averred that defendant had failed to perform her contract. The answer alleged non-performance on plaintiff's part. Upon trial by the court, a jury having been waived by the parties, the judge found for plaintiff for the amounts claimed by her, and judgment for plaintiff was entered thereon. From the judgment defendant appealed.

Joseph E. Newburger, for appellant.

Lewis Johnston, for respondent.

J. F. DALY, J.--On the day named in the agreement of the parties for the delivery of the deed, the vendor, the defendant, was unable to perform because of the incumbrances upon the property which she was to convey to plaintiff. The existence of those incumbrances at the time fixed in the agreement for the closing of the title, was a breach of the agreement on defendant's part, which put it out of her power to perform, and excused the plaintiff from tendering payment (Morange v. Morris, 3 Keyes 48). Plaintiff was therefore not in default in not attending on the day named with the money or mortgage. By reason of the breach by defendant, she was then entitled to recover back the $100 paid on signing the contract, and the $186 expended for searching title,-not required to pay or tender anything to defendant then nor subsequently. The defendant did, at the time named, offer to allow the amount of the incumbrances to be deducted from the cash payment to be made by plaintiff, but as they exceeded the amount of such payment, that offer did not meet the difficulty, so that there could not be any arrangement to that effect between the attorneys which would bind the plaintiff.

Jennison v. Knox.

The plaintiff's attorney asked for an adjournment, which the defendant's attorney refused. Some days after, the plaintiff notified defendant by letter that she would attend at the office of the latter's attorney at a day and hour named to complete the contract. Defendant sold the property on or before the day named to another party, and did not attend, and never offered the plaintiff the title which she was bound to give under the contract. No point can therefore be made as to the sufficiency of the alleged tender by plaintiff on that day, because none was necessary then nor before.

The judgment should be affirmed, with costs.

VAN HOESEN and ALLEN, JJ., concurred.

Judgment affirmed, with costs.

ELBERT S. JENNISON, Respondent, against THOMAS R. KNOX et al., Appellants.

(Decided April 1st, 1889).

By contract between plaintiff, an author, and defendants, publishers, for the publication of plaintiff's book, plaintiff was to furnish stereotype plates, pay cost of printing, advance a sum of money towards the expenses of paper and binding, and charge defendants with fifty per cent. of the retail price of the books; defendants were to undertake the publication, furnish the paper and bind the edition of 1,000 copies, and push the sale, guaranty all sales, and account every six months "on the basis of fifty per cent. from the retail price; " plaintiff was to pay defendants a certain sum for every copy he received, and for books sent to newspapers for the purpose of review. Defendants had possession of the books. While in their possession, 240 copies were accidentally destroyed. Held, that plaintiff could recover from defendants therefor fifty per cent. of their price at retail. The case was not within the rule where performance of a contract becomes impossible by destruction of the subject matter.

Jennison v. Knox.

APPEAL from a judgment of the District Court in the City of New York for the Third Judicial District.

The facts are stated in the opinion.

Benno Loewy, for appellant.

Henry M. Herrman, for respondent.

PER CURIAM.-[Present, VAN HOESEN and BOOKSTAVER, JJ.]-The plaintiff is an author, who, wishing to have an edition published of his work, called "Christie's Choice," entered into an agreement with the defendants, who are publishers, for the publication. The plaintiff was to furnish the stereotype plates, to pay the cost of printing, and to advance $240 towards the expense of the paper and the binding; and he was to charge the defendants with fifty per cent of the retail price of the book. By this we understand that he was to receive one half of the retail price of the book, free and clear. The defendants were to undertake the publication, to furnish the paper, to bind the edition, of 1,000 copies, to push the sale, to guaranty all sales, to account once in six months, to expend $25.00 in advertising, and to settle "on the basis of fifty per cent from the retail price." When any books were delivered to the plaintiff, he had to pay to the defendants 75 cents for every copy that he received, and when copies were sent to the newspapers for the purpose of obtaining a favorable notice of the work, the plaintiff was charged with 62 cents for every copy, and ten cents for the postage on every copy. The defendants were regarded by both parties to the contract as the owners of the books in their salable form. They had the possession, and the right of possession, and all that the plaintiff could claim was fifty per cent of the retail price of the books. In the books themselves he had no property whatever. Two hundred and forty of the books were accidentally burned, and the question is, whether the plaintiff is entitled to recover his fifty per centum of their price at retail?

Jennison v. Knox.

The controlling question is, what was the intention of the parties? They have made no provision for the case of the destruction of the books by fire, and our decision must depend upon the construction to be given to the written contract. Are we to construe the contract as one not impossible of performance, and to call on the defendants to perform their obligation to account for fifty per cent of the retail price of the books; or are we to imply as one of the terms of the contract the condition that the destruction of the books should free the defendants from any liability respecting those that were destroyed?

It has been the rule of the courts to imply such a condition where the subject of the contract is a specific thing for which a substitute will not answer. The most familiar illustrations of the rule are the case in which the horse Eclipse was bargained and sold, and he died before the day of delivery; and the other case, in which Surrey Music Hall was leased for certain concerts, but was destroyed by fire before the time for the concerts arrived: in both cases, the court held that it was a condition implied from the very nature of the contract that the destruction of the thing that was bargained for, without the fault of either party, was a good excuse for not performing the contract. This was so because both parties must have known when the contract was entered into that, unless the identical thing continued to exist, performance would be an impossibility (Dexter v. Norton, 47 N. Y. 62; Pollock Contracts, marg. p. 362; Hare Contracts, p. 648.) But where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it, or pay damages for not doing it, although in consequence of unforeseen accidents the performance of his contract has become unexpectedly burdensome, or even impossible. In such a case, to use the language of Judge RUGGLES, in Harmony v. Bingham (12 N. Y. 115), it must be deemed the folly of a party not to provide expressly against contingencies, and exempt himself from responsibility in certain events; and in the instance of an absolute and general contract, the performance is not excused by an inevitable accident or other contingency, although not foreseen by or within the control of the party.