Thomas v. Dickinson , 1856 N.Y. App. Div. LEXIS 119 ( 1856 )

By the Court, T. R. Strong, J.

The position, that the plaintiff is not entitled to recover under a declaration in assumpsit containing only the common counts, because the proof showed a special contract between the parties subsisting, and in full force, is fully answered by the decision of this court on a former occasion, and also by the decision of the court of appeals in this case. In this court, it was held, that the special contract was void by the statute of frauds ; that the plaintiff having transferred his property to the defendant under a contract as to payment which was void but not illegal, if the defendant has failed to perform the contract, and is in default, the law implies a promise on his part to pay the plaintiff the balance of the value of the property unpaid, and that the proper and only remedy of the plaintiff was that which he had selected. In the court of appeals, the common counts were held to be appropriate, upon the well settled and familiar doctrine, that a party may recover under the common counts in assumpsit, the stipulated price due on a special contract not under seal, when such contract has been executed. That ground is sufficient, if the doctrine applies to cases where by the contract the mode of payment was to be special—in something else than money—as well as to those where the payment was to be in money; as to which some doubt has be.en entertained. (See Underhill v. Pomeroy, 2 Hill, 603 ; S. C. in error, 1 id. 388.) It is not material in this ease, which court has presented the sound and proper basis for the decisions ; the decision of the latter court is all that is important.

There was not, I think, any error in the instruction to the jury, in substance, that if the contract between the parties was, that the plaintiff was to take the obligation which Campbell was to give the defendant for the carding machine property, then it became the duty of the defendant, as part of the contract, to procure the obligation and deliver it in payment; and, not having done so, he has failed to perform on his part, and the action might be maintained to recover the amount of the obligation. The construction of the contract belonged to the court, and the legal effect of the contract, if it was as stated, and as the jury have found, was, in my opinion, correctly stated in the instruction. Although Campbell was not bound to take the property of the defendant and give the mortgage, by reason of his agreement with the defendant being verbal, and consequently void by the statute of frauds, which fact was probably known to the plaintiff when the contract between him and the defendant was entered into, it was nevertheless expected by both parties that Campbell would perform on his part and give the mortgage; and entertaining that expectation, the defendant was willing to agree to turn out the debt against Campbell, which necessarily involved an undertaking by him to procure it. The contract in question was made on the assumption that the mortgage would be given by Campbell, and the law cast the risk of a default by Campbell on the defendant. It is plain from the terms of the contract, that the parties understood the'defendant was to procure the mortgage and transfer it to the plaintiff; the plaintiff was to take the obligation—not the land with the agreement to give a mortgage—but the obligation to be created by a consummation of the agreement between Campbell and the defendant. If it had been the understanding that the plaintiff was to take the defendant’s place in respect to the land and the agreement with Campbell, it would have been expressed in very different language. The fair construction of the contract in question being as stated, the failure of the defendant to perform it is clear; Campbell having refused to give the mortgage. And the rule of damages, as settled by the court of appeals, is the value of the debt which was to be transferred to the plaintiff. And the value of that debt was prima facie the amount of it.

It was not a question in the case, whether by the terms of the contract between the parties the defendant undertook and agreed that he would be responsible that Campbell should go on and complete his purchase of the carding machine property. The plaintiff did not pretend, and there was no evidence tending to prove, that the contract contained such terms: he relied. solely upon the contract as found by the jury, and the legal obligation arising therefrom, on the defendant, to procure and transfer to him the debt against Campbell.

[Monroe General Term, December 1, 1856.

I think the charge, and the several refusals to charge, were correct, and that a new trial should be denied.

T. R. Strong, Welles and Smith, Justices.]