Branaugh v. Basselin , 92 N.Y. Sup. Ct. 616 ( 1895 )

PER CURIAM.

We are of the opinion that the twelfth clause of the contract between the parties should be construed to mean that if, excluding the 1,000 cords therein reserved, there should not be as much as 8 cords per acre, then the defendant agreed to pay to the plaintiff one dollar per cord for the said 1,000 cords to the extent only that the said lands failed to produce the said 3 cords per acre, and that, therefore, the liability of the defendant under said clause would not, in any event, exceed the sum of $1,000.

We are also of the opinion that the complaint states a cause of action. The contract is a part of the complaint. It is alleged that, excluding the 1,000 cords that were reserved by defendant, the land embraced in the contract actually produced 992¿ cords less than 3 cords per acre; that the plaintiff has made payments •on the contract, and, relying on its provisions, has overpaid the defendant, for all liability existing under the contract from the plaintiff to the defendant, the sum of $992.50; that in consequence of •such overpayment the defendant is liable to repay the same to plaintiff, and the plaintiff has, before suit, demanded the same, and -no part thereof has been paid; that the plaintiff has fully performed all of the provisions of the contract to be performed by him. It is suggested on the part of the defendant that he has already paid one dollar per cord for the 1,000 cords reserved, and that this action is to recover for a deficiency beyond that. This, however, does not appear from the complaint. It follows that the de.murrer is not well taken, and that the judgment must be reversed.

Interlocutory judgment reversed, "without costs of appeal to either party, and demurrer overruled, with costs, with leave to the -defendant to answer on payment of the costs of the demurrer.