Buffalo Catholic Institute v. . Bitter , 1881 N.Y. LEXIS 346 ( 1881 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] We think this case was well decided upon the ground stated in the opinion of DANIELS, J., at Special Term. The contract of sale was between Weisser, and Fornes. It commences, "Article of agreement between Henry Weisser of the first part, and Charles V. Fornes, president, of the second part," and is signed and sealed by the parties, Fornes, adding to his signature the words "president of Buffalo Catholic Institute." The contract contains a provision that it is made on condition "that the Buffalo Catholic Institute will accept and approve of this purchase, and its terms and agreement, on or before November first next." The addition of the word president, to the name of Fornes, in the body of the instrument, or its execution by him, in his name, with the words "president of Buffalo Catholic Institute" added, did not make it the contract of the corporation. These additions, are descriptio personæ, merely. The covenants on the part of the purchaser are his personal covenants. The party of the second part covenants to pay as provided, and to secure the purchase-money unpaid, when the deed is given, by his bond and mortgage on the premises, for this is the clear meaning of the clause "to be secured by a bond and mortgage upon the property." The covenants by the vendor, are covenants with Fornes; the agreement is with the "party of the second part," and the conveyance is to be made to the "party of the second part, and his legal representatives." The clause making the contract conditional, upon the acceptance and approval of the purchase by the Buffalo Catholic Institute, furnishes ground for an inference, that Fornes, was assuming to act for the plaintiff, but does not make the contract on its face, the contract of the plaintiff. The condition being met, still, the final execution of the contract, would, according to its terms, be between Weisser, and Fornes. Weisser, would be bound to convey to Fornes, and the latter would be bound to pay as provided, and to secure the time payment by his bond and mortgage. The question here arises on demurrer to the complaint. The complaint alleges that Weisser, by an agreement under his hand and seal, which is set out in hæcverba, agreed to sell and convey, etc., and that the plaintiff, by the same contract, agreed to buy, etc., and then alleges performance, and tender of performance, by the plaintiff, and refusal to perform by Weisser, and that the plaintiff is the equitable owner of the land, and demands specific performance, with a prayer for general relief. There is no averment, that Fornes was president of the plaintiff, or its agent, or made the contract as such, or that it was intended as a contract between Weisser, and the plaintiff. The averment that the defendant, by the contract set forth, agreed to sell, and the plaintiff to purchase, is simply an averment of the legal effect of the written instrument, and is not admitted by the demurrer. (Kinnier v. Kinnier, 45 N.Y. 535; Bonnell v. Griswold, 68 id. 294; United States v. Ames, 99 U.S. 35.) We think the demurrer is well taken, and it is unnecessary to decide whether the written instrument might not be helped out by averment, so as to entitle the plaintiff to relief by way of specific performance.

The judgment should be affirmed.

All concur.

Judgment affirmed.