Mehl v. Von Der Wulbeke , 2 Lans. 267 ( 1869 )

By the Court

Barnard, P. J.

By the agreement between the parties for the specific performance of which this action is brought, the price of the defendant’s farm ivas to be $8,000, the price by the agreement was to be paid by the plaintiff, as follows: $2,000 by assuming a mortgage on the property, $3,750 by transfer of restaurant 661 Broadway, $250 for cows removed by defendant from farm, “ $2,000 (two thousand dollars) by delivering to the party of the first part (defendant), good marketable wines and liquors at the regular-market price, at intervals commencing at the time the party of the first part (defendant) shall open such restaurant business and for one year thereafter, or they shall be required ” by plaintiff, not exceeding $250 at one time. The defendant covenanted that he, “ on receiving such payment at the time and in the manner above mentioned,” shall deliver a deed of the premises, “ which deed shall be delivered on the 31st day of December, 1868.”

It will be seen that by the agreement the defendant was only to deliver his deed upon being paid in full according to the contract, but the agreement calls for such delivery on the 31st December, 1868. Ho part of this $2,000 in merchantable liquors could be demanded until that day or about that day, and the whole year of 1869 might be consumed in making that payment.

Did the parties mean that the deed should be delivered before payment?

The agreement says that such delivery shall be after payment, but also fixes a day so early that payment was impossible before the delivery.

In such a case what will equity do ?

Shall the defendant be compelled to pass his title out of his hands before he receives the consideration in full, as he has provided by his contract, because of the day which is fixed for the transfer. This seems to me to be inequitable. The parties do not present such a case as is enforceable in equity. The contract is not only uncertain, but at the time was impossible of execution. The rights of the parties are such that the remedy at law is adequate.

The judgment should be reversed and the complaint dismissed without costs.

Judgment reversed.