Lee v. Briggs — 25 N.Y. St. Rep. 512

Majority

p. 512

Ambrose Lee et al., Resp’ts, v. John T. Briggs, App’lt.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Contract—For sale of real estate—Wren not objectionable for UNCERTAINTY.

_ An agreement for the sale of a house and lots, Nos. 17-23, •which provides that a deed shall be given at any time on payment by the vendees of $1,000, is not objectionable for uncertainty, where the vendees have paid the taxes and interest on the purchase price, as the time of performance can be made certain by the vendor tendering a deed, and demanding the $1,000. ■

2. Same—Description—Parol evidence.

Nor is it objectionable for uncertainty in the description of the property, as it may be shown by paroi evidence what property is intended to be conveyed.

p. 513

Appeal from a judgment and decree for the specific performance of a contract, for the sale and purchase of real property.

Miller & Phillips, for app’lt; Martin J. Keogh, for resp’ts.

This is an action to compel the specific performance on the part of the defendant, of the following contract:

Jerome, N". Y., July 11, 1884.

Memoranda.

Agreement made this day between Ambrose Lee and Elizabeth S. Lee, first part, and John T. Briggs, second part, to purchase house and lots (Nos. 17 to 23) here for $5,000—the latter, John T. Briggs, to give deed for same at any time, on payment of $1,000 or more by the former, Ambrose Lee and Elizabeth S. Lee; balance to remain on bond and mortgage at six per cent for one or more years, at option of said Ambrose Lee; fifty dollars to be paid by Ambrose Lee and Elizabeth S. Lee for the new fence. In meantime, interest to be paid by Ambrose Lee and Elizabeth S. Lee at six per cent, as follows: Twenty dollars monthly, and all taxes on the property, to John T. Briggs.

AMBROSE LEE,

ELIZABETH S. LEE,

J. T. BRIGGS.

The trial court has found, upon ample proof, that the parties executed the agreement, and that, in pursuance thereof the plaintiff entered into possession and duly kept and performed upon his part all the stipulations therein contained. The execution of the agreement and what has been done since, were matters of fact, and the findings of the judge below seem to be fully sustained by the evidence.

The defendant objects to the agreement as uncertain, as void for want of mutuality, and that it would be inequitable to enforce it.

The main point as to uncertainty is based upon the expression that the deed was to be given at any time on payment by plaintiffs of $1,000. This will not avail them when it is considered that the plaintiff continued to pay the taxes upon the property and interest upon the purchase price. The time could be made certain by the defendant tendering a deed and demanding the $1,000. As to the uncertainty of the description of the property, it was proper to show what the property was by paroi evidence, and that was also rendered certain by the plaintiff entering into possession of a properly defined and described "piece of property as appears by the pleadings.

The question to be determined at the trial was whether there existed a contract between the plaintiff and defendant sufficient in law, and which equity ought to enforce.

p. 514

It was not whether the contract standing alone was sufficient to warrant a judgment of specific performance, but-whether, under all the facts and circumstances appearing; upon the trial, such a judgment ought to be rendered.

Considering all the negotiations, the fact of possession by the plaintiff and his making improvements upon the property and payment of taxes, it would have been a fraud upon the plaintiff to permit the defendant to refuse performance of his part of the contract.

The judgment must be affirmed, with costs.

Barnard, P. J., concurs; Dyicman, J., not sitting.