Bogart v. De Bussy

Headnote

Where an a"reement,under seal, was made B6 fas attorneys the5 conveyance the payment of a certain sum of money by 1). and A. and B. brought an action for a breach their"ownW immes,^agmnst that an agreemcnt, purportingto he made by a person, as attorney_ for an- and^no^aoUon Gained onitTand that if the agreement was to be • 'Considered as , made with C. the principal, then the suit should have been in his name, so that, in aiiy way, the plaintiftscould not recover.

THIS was an action for a breach of covenant. The . declaration stated, that by an agreement, made the 7th March, 1807, between the parties, the plaintiffs, as attorneys to Simon Laurentius, in consideration of 3,130 dollars, to be paid by the defendant, to the plaintiffs, as follows, viz. 1,565 dollars on or before the first of May „ J next ensuing, and the residue to be secured by bond and . , . , r , mortgage, payable m two annual payments, from the 1st of May, agreed to execute a good and sufficient conveyance jn the law, to the defendant, of the farm jn possession of 'Jan Muer, in Trenton, in Oneida coun1 V J i ty, containing 127 acres. The plaintiffs then say, that v although they have well and truly performed all things on their part to be performed, yet protesting, that the defendant has not performed any thing, they aver, that foey 0n the said 1st of May, and at all times before J 7 j 7

and since, were ready and willing to. execute and deliver a good conveyance, &c. and that the defendant did not pay to them the 1,565 dollars, on the said first day of May, nor before or since, and that on that day the said 1,565 dollars were due, and payable by the defendant to them, by virtue of the said agreement, and still is due, and so they say, &c.

The defendant pleaded, 1. Non est factum. 2. Thai the defendant has, at all times, been ready to perform, on his part, but that the plaintiffs bad not, on or before ¿he said 1st day of May, or at any time afterwards, any estate in the said farm, &c. or any lawful authority from Simon Laurentius, to execute to the defendant a good conveyance of the same, and this he is ready to verify, &c. S. That the defendant has, at all times, been ' ready, &c. but that Simon Laurentius, and Christiana Charlotta, his wife, on the 23d of June, 1800, by indenture, in consideration of 900 dollars, to them, paid, by Adam Gerard Mappa, Paul Busti, and Boelef Van Stophorst, jun. sold to them, in fee, the said farm, on condi- . tion that the estate should be void upon the payment of the 900 dollars, on the 23d June, 1805, with interest yearly; and the defendant avers, that the 900 dollars, were not paid, nor have been since paid, by means whereof the estate of the said Alappa and others, became absolute ; and so the plaintiffs could not, on the said 1st of May, 1807, nor before, execute a good conveyance, &c. and this he is ready to verify, &c.

The plaintiffs replied, to the second plea; protesting, that the defendants had not, at all times, been ready, &c. that they had, on the 1st of May, 1807, by virtue of a letter of attorney, made 16th April, 1803, by Simon Laurentius, an estate and interest in the said farm, and lawful authority, as attorneys aforesaid, to execute a good conveyance of the same to the defendants, in fee, and this they pray may be inquired'of by the country, fte. To the 3d plea, that although it was true, thaS

Laurenthts and his wife did execute the mortgage, &c* . . as alleged, yet at the time of executing the said articles of agreement, to wit, on the 7th March, 1807, the plaintiffs gave notice to the defendant, of the said mortgage, and that it was then expressly agreed between them, that the sum due on the mortgage should be satisfied by the plaintiffs, out of the moneys to be first paid by the defendant, in pursuance of the said agreement, -without that, that by reason of the non-payment of the mortgage moneys, the said estate became absolute in the mortgagees, &c. and further, that they could, on the said first day of May, 1807, and before, execute a good* conveyance in the law, to the defendant, for the said farm, and this they are ready to verify, &c.

There was a general demurrer to this last replication and joinder.

The cause was submitted to the court, without argument.