Donath v. Germania Land Co. , 56 N.Y.S. 313 ( 1898 )

Hiscock, J.

The plaintiff, while under twenty-one, made a contract with the defendant land company to sell her a lot for $350 •on or about September 13, 1897, and she has paid upon said contract the sum of $25. Her father, who is a defendant in default, .acted more or less as her agent in conducting said negotiations and in the execution of said contract. Subsequently to its execution the land company executed a conveyance of the premises covered by •said contract to said father Frederick Donath, and he gave back to it a mortgage for the unpaid balance. This transaction was not ■sufficiently authorized by the plaintiff to make it binding upon her. After the execution of said contract, as plaintiff claims, she made a contract with her father to erect a house upon said premises, and he commenced the erection thereof. He was unable to pay for the labor and materials used therein, and liens were filed against the same which are still unpaid and are held by the various defendants other than the land company and Donath and are valid against said premises, with the exception of one lien which has been waived by the obtaining and entering of a money judgment for the amount thereof. Plaintiff claims that she paid her father $125 upon the •contract for the erection of this building, but I am not satisfied from the evidence that she advanced that sum. At the time of the •execution of said contract with the defendant land company and of -said alleged contract with her father for the erection of her house plaintiff was under age. Since becoming of age she has affirmed her contract with the land company and demanded the execution thereof, and she claims has disaffirmed her contract with her father for the erection of said house. She seeks specific performance of her contract with the land company, or, in case that cannot be awarded, money damages.

As above stated, there is no evidence which proves that the land company was authorized to execute the conveyance of said premises to Frederick Donath, the father, and take back the mortgage. This being so, plaintiff would be entitled to judgment in this case setting aside said conveyance and mortgage and decreeing specific performance by defendant in the form of a conveyance of said premises to her in accordance with the contract free and clear of incumbrances, etc., upon her paying the balance of the purchase price. It is clear, however, that specific performance cannot be awarded in this case on account of the liens which have been filed against said premises and which should be held good certainly as against the defendants land company and Frederick Donath. This being so, and the court having obtained jurisdiction of the subject matter, it is proper to dispose of the litigation by -awarding such other judgment by way of damages as will do justice between the parties. I am unable to find that plaintiff has suffered any damages in the matter for which defendant land company can be held responsible, except in the payment of $25 on the purchase price of the premises of which defendant is now unable to give her a sufficient conveyance, and a judgment for that amount with interest from the date of payment is directed.

Plaintiff is also awarded taxable costs of this action against defendant land company to the amount of $50 and disbursements.

Ordered accordingly.