Graham v. Healy

This action was commenced on the 6th day of April, 1904, to have it adjudged that a sale of certain real estate by the defendant to the plaintiff on the 19th day of August, 1899, be set aside and declared void, and for the recovery of the sum of $1,-000 delivered by the plaintiff to the defendant at the time of the purchase to cover 10 per cent, of the purchase price. The plaintiff alleges, in substance, that the defendant advertised a sale at public auction of six plots of land, consisting of 52 city lots, at Far Rockaway, on the 19th day of August, 1899; that the sale was conducted by a licensed auctioneer; that plaintiff bid for each of the six plots, and that they were all struck off to her; that for one of the plots, containing 12 lots, she bid $205, and for two other parcels, each containing 16 lots, she bid $200 for each parcel, consisting of two plots, and that for a fourth, containing eight lots, she bid $205, making $810 in all; that she was requested by the auctioneer’s clerk to make a deposit of 10 per centum of the amount of her bids, and that she delivered to him a $1,000 bill, at the same time stating that she wished to make a deposit of $100, on account of her bids; that said clerk well knew that the plaintiff supposed and understood that her bids were received as bids on the six plots, and made the deposit under a misapprehension and mistake, and on a void contract, and that he received and retained it with intent to deceive and defraud her, stating that he had no change, and that she could get the change from the defendant; that immediately after the sale she went to the defendant’s house at Far Rockaway and demanded $900, being the balance of the $1,000 paid after deducting the $100 to be deposited to cover 10 per cent, of her bids, and that the defendant well knew and understood that she supposed that her bids were received for the six plots, and

The allegations of the complaint tending to show a mistake or misunderstanding with respect to the terms of the sale are put in issue, and it is alleged in the answer that the premises were sold by plots, but the bids were received at so much per lot for the entire plot; and that, as the plaintiff alleges, she purchased the entire six plots, but that the amount which she alleges was bid on each plot was the amount she bid on each lot in the four plots particularly designated in the complaint, and that the aggregate amount of her bids on all the lots in the six plots was $9,767.80, and that the amount she deposited was approximately 10 per centum of her bids, plus the auctioneer’s fees, as required by the terms of the sale. It is further alleged in the answer that by the terms of sale the purchases were to be consummated at the office of the defendant’s attorneys one month from the day of the sale, and that at that time the defendant was ready to perform, but the plaintiff requested an adjournment, which was granted, and on the adjourned day the plaintiff failed to complete her purchase.

The trial court found that there was no fraud or misrepresentation on the part of the defendant or the auctioneer; that the premises were offered for sale by plots, and “bids were called for upon said plots”; that the plaintiff bid $195 per plot for each of the six plots, without knowing or understanding that her bids were understood by the defendant to be bids for each lot in the plots, and that she was not aware that the defendant so claimed until after she paid the $1,000, when he refused to return the $900, and claimed that her bids were on the several lots in the respective plots, and that no contract or memorandum of sale was subscribed by the defendant, or by his duly authorized agent, or by the plaintiff, and that the contract rested wholly in parol. The judgment follows the decision, and sets aside and rescinds the plaintiff’s bid and the sale of the plots of land to her, “and all the transactions of the parties in relation thereto,” and dismisses the defendant’s counterclaim, and awards judgment for the plaintiff for the sum of $1,000 and interest, together with costs and disbursements.'

[1] The plaintiff testified that on the day of the auction, with a view to avoid seeing some friends who were to call where she was stopping, she, in company with her niece, took a Long Island train for Rockaway, intending to ride down and back, and that her attention was drawn to the auction sale of this land by an advertisement in

The plaintiff’s explanation for having the $1,000 bill was that she had two sisters who were dangerously ill, and she had the money to pay' the doctor's’ bills and funeral expenses. Her niece was neither called nor accounted for, and several witnesses on the part of the defense testified that no one accompanied plaintiff to the auction or to defendant’s house. The plaintiff is wholly uncorroborated, and her testimony, given more than 10 years after the auction and nearly 6 years after she verified her pleading, cannot be reconciled with her complaint. She has utterly failed to sustain the burden of proof required to entitle her to recover. .If her testimony were to be accepted the judgment could not be sustained; for it only tends to show that, without making any inquiry with respect to the terms of sale, she arrived on the scene while the auction sale of this vacant land was

Moreover, her own admissions with respect to the reason she did not complete the sale and the payment of $1,000, when only 10 per cent, of her bid plus auctioneer’s fees was required, tend to sustain the contention of the defendant that there was no mistake on her part with respect to what she was bidding on. The evidence, uncontroverted, except by plaintiff’s testimony that she does not remember, shows that the auctioneer at the time of the- sale filled out and caused to be delivered to plaintiff a blank receipt, such as are used by auctioneers, showing the purchase by her of the six plots, containing 52 lots, and the price figured on the basis that her bids were for the lots, making the total purchase price $9,900, to which $60 was added for auctioneer’s fees, giving her credit for $1,000 paid in cash, leaving a balance of $8,960 owing. The defendant testified that, after plaintiff had paid the $1,000 and immediately after the sale, he talked with her with respect to closing it on the 15th of September, and asked her whether she wished to avail herself of one of the terms of sale, by giving back a mortgage for one-half of the purchase price, and she said that she would pay the entire amount in cash; that on the 15th day of September they met to close the title, and in the meantime he had had the deed drawn in her name by her direction and executed, and was ready and able to perform, but that plaintiff’s lawyer did not appear, and that he suggested that, if she did not want the land, he would give her back her money, as she received the lots at a very low valuation, but she said she wanted to take title and the closing was adjourned until the 19th of September; that on the 18th he sent her a telegram with reference to closing, in reply to which he received a letter from her as follows:

“Tour telegram received. X would like you to send diagram of lots as you promised, and when I have them searched I will close matters with money immediately.”

Plaintiff did not appear at the time and place to which the closing was adjourned, and defendant made reasonable efforts to obtain an interview with her after receiving said letter, but without success. She does not controvert this evidence, or claim that the negotiations with respect to closing were broken off on account of any misunderstanding with respect to the quantum of land or her bid. I am of opinion, therefore, that if a court of equity can and should release a party from a contract on proof of excusable mistake on his part, with

[2] There is no force in the contention that the plaintiff is entitled to have the down payment returned on the ground that the contract rested in parol and was void within the statute of frauds. Section 224 of Real Property Law, being chapter 547, Laws of 1896, as it existed August 19, 1899, .now section 259 of chapter 50, Consol. Laws. It is unnecessary to consider whether or not the auctioneer’s receipt constituted a sufficient note or memorandum of the contract to sustain it, notwithstanding the objection that it was void under the statute of frauds. It has long been the settled law of the jurisdiction that a vendee cannot recover a payment made to apply on the purchase price of real estate under a parol contract which is void within the statute of frauds, unless the vendor has repudiated the contract or is unable or unwilling to perform. Collier v. Coates, 17 Barb. 471 ; Fleischman v. Plock, 19 Misc. Rep. 649 , 44 N. Y. Supp. 413 ; Quinto v. Alexander, 123 App. Div. 1 , 107 N. Y. Supp. 422 ; Hann v. Brettler, 50 Misc. Rep. 647 , 98 N. Y. Supp. 607 . See, also, Cooley v. Lobdell, 153 N. Y. 596 , 47 N. E. 783 . Here there was no tender of performance by plaintiff or demand that defendant perform. Moreover, the vendor was at the time fixed for performance ready and willing to perform, and so remained for a reasonable time. In the circumstances, it is quite clear, I think, that plaintiff has forfeited the down payment. There can be no doubt on the evidence that plaintiff parted with the $1,000 bill with the intention and on the understanding that it was all to be applied on her bid. The defendant waived his counterclaim, and we are not required to consider whether or not it was meritorious.

The judgment, therefore, in so far as it dismisses the counterclaim, should be affirmed, and, under our recent ruling in Bonnette v. Molloy, 138 N. Y. Supp. 67 , findings numbered V, VII, VIII, IX, X, and XII, in so far as they are inconsistent with these views, should be reversed, and the judgment in all other, respects should be reversed, with costs, and final judgment dismissing the complaint upon the merits, with costs, should be awarded in favor of defendant. All concur.