Ware v. Westfall , 1855 N.Y. App. Div. LEXIS 122 ( 1855 )

By the Court, Johnson, J.

The contract, which was in its nature executory, has been fully performed by both parties, and ' neither can maintain an action upon it, against the other. The plaintiff was not bound to' convey until the first payment was made. When that was made and he had conveyed, his obligation under the contract was performed.

When the defendant was called upon to perform on his part as to the residue,, it was at the plaintiff’s election whether he would have the remaining payments secured by notes or by mortgage. He elected to take the latter, and when this was executed by the defendant and delivered to and accepted by the plaintiff, the defendant had done every thing which the contract contemplated. The acceptance of the mortgage must be deemed to have been in satisfaction of the contract. (Bull v. Willard, 9 Barb. 641. Houghtaling v. Lewis, 10 John. 297. Howes v. Barker, 3 id. 506.) There are no collateral covenants. The plain intention of this part of the contract was, to fix the amount to be paid, and to provide in what manner the future payments should be secured. When the securities were given, according to the terms, and accepted, the contract was at an end. It was then performed on both sides, and there could be no breach afterwards which would be the subject of an action. The failure to make payments according to the terms of the mortgage was no breach of the contrabt The mortgage, when taken, was in fulfillment .of the contract, and not collateral to it, as is assumed by the plaintiff’s counsel. It became the debt as much as would the notes, had the plaintiff elected to take them instead of the mortgage, or a bond, had that been provided for, in addition to the mortgage. The remedy was upon the mortgage and not upon the contract; and the judgment below must be reversed-.

[Monroe General Term, December 3, 1855.

Welles, Selden and Johnson, Justices.]