Clexton v. Tunnard , 104 N.Y.S. 665 ( 1907 )

Smith, P. J.:

The complaint itself states aicause of, action. It is criticised :by* the defendant as not alleging that the plaintiff is able to convey the property. It does state, however, that the'plaintiff “has.always been, and still is, ready and willing to perform the said agreement on his part,” and that-he thereafter did tender to the defendant a deed of said premises pursuant to the terms of said agreement and' demanded the payment .of the balance of' the' consideration therefor from the defendant, and she. then refused and ever sincé has refused to perform. This-allegation of readiness and willing- , ness to perform and a tender of a deed pursuant to "the terms of the contract is;, in our judgment, a sufficient allegation of .ability to perform. (Rawson v. Johnson, 1 East, 203 ; Cort v. Ambergate, etc., Ry. Co., 17 Ad. & El. [N. S.] 127, 144.) In Kuntz v. Schnugg (99 App. Div. 191) what is said as to the necessity of an allegation of ability to perform seems to be obiter. Further, inability to perform a contract has,usually been regarded as matter of defense, and it has not been deemed essential to allege ability to perform at the time of making the complaint, as the defendant might be able to give a good title at the time of the decree. (Pierce v. Nichols, 1 Paige, 244; Brown v. Haff, 5 id. 235 ; Reformed Protestant Dutch Church v. Mott, 7 id. 77.)

This contract was executed by the plaintiff individually. It is not executed by him as executor. The addition ' of the word' “ executor ” is simply descriptio ■ personae, and he has the right to bring the action in his individual name as upon an individual contract. '(Litchfield v. Flint, 104 N. Y. 543.) If this contract then be an individual contract, the objection of want of mutuality is not good. The deed which he tendered in performance of the contract would probably have been proven under the pleading to have been the deed of his wife, to whom the' property passed under the will in question. If so, there is no reason why he is not entitled to full performance of the contract and to the moneys that are due thereunder.' '

It is most.unsafe practice to dismiss a complaint without a word of evidence. where the complaint states a good cause of action. What may have been assumed upon tli.e trial as to this will, or as to this contract, are only matters of inference. What was stated by plaintiff’s counsel does not appear. ■ It only appears that he argued against the motion to dismiss the complaint. In the most favorable view of this case for the respondent the will and contract were assumed to have been properly executed and to have been the papers determining the rights of the parties herein. But even then as the. complaint states a good cause of action, there are no facts shown which indicate that the plaintiff upon his proof may not be able to show the right to the relief for which lie asks.

The judgment should, therefore, be reversed on law and facts and a new trial granted, with costs to appellant to abide event.

All concurred, except Chester^ J.,'dissenting in opinion.