Shaw v. Kellogg — 56 N.Y. St. Rep. 371

Majority

p. 371

Robert Shaw, Resp’t, v. Christina Kellogg, App’lt.

(Supreme Court, General Term, Third Depaodment,

Filed December, 1893.)

Headnote

Ejectment—Default in contract to convey.

Where, by the terms of a contract, the vendee covenants that, on a default in the payment of either the first or second installment for the period of sixty days, and upon a demand in writing by the vendor for the possession of said premises, he will quit and surrender up the same to the vendor, an action of ejectment, upon such default, can be maintained.

Appeal from a judgment in favor of plaintiff.

Robert JDornburgh, for app’lt; Stanley H. Bevins, for resp’t.

This is an action of ejectment to recover the possession of certain lands in Hamilton county contracted to be conveyed by plaintiff to the defendant by a written agreement dated February 7, 1886, the defendant being in possession under said contract at the time of the commencement of the action. The purchase price named in the contract was $1,000, payable, $100 at the end of the first year, $100 two years from the date thereof, and the balance or the purchase price as provided in the contract with interest on the principal sum unpaid at the time of each payment. The contract also provided that upon default for the space of sixty days by the defendant in either of the first two payments said defendant was to quit and surrender immediately, upon demand in writing therefor, the possession of said premises to the said plaintiff, and on such default was to become the same as a tenant in arrear for the non-payment of rent. The referee to whom the same was referred found that the defendant made default in the payment of the second payment or installment, due February 7, 1888, and interest thereon, provided to be paid in said contract by said defendant, and that she has ever since been in default, and that nothing has since been paid to apply on the second payment or the interest due thereon. That after the expiration of the sixty days as provided for in said contract plaintiff served on defendant a demand in writing for the possession of said premises, as required by the contract. Thereafter, and on or about February 27, 1889, plaintiff served upon the defendant a further demand requiring the delivery of the possession of said premises to the plaintiff, and thirty days before the commencement of the action served yet another written notice demanding possession of said premises.

The principles applicable to such a case as this are so well settled that an extended discusson is unnecessary. Defendant’s only right to the possession of said premises -was derived under the contract above referred to. By the contract on a default in the payment of either the first or second installment for the period of sixty days and upon a demand in writing by the plaintiff for the possession of said premises the defendant covenanted to quit and surrender up the same to the plaintiff.

There seems to be no substantial conflict in the evidence. The contract was proved, the defendant concededly was in possession under said contract and with no rights to the possession of the

p. 372

premises except such as were conferred upon her by the said instrument. It was not claimed that she had made the second payment and a proper notice or demand in writing was shown to have been served upon her by the plaintiff. Some evidence was given on the trial tending to show a verbal extension of the time of payment by the plaintiff. The evidence however was such that the referee could properly find that there was no valid extension of time. The plaintiff was sworn on the trial, and testified that when the second payment became due he had an interview with the defendant who said “ she had no money and could get none." I told herí could not take a bank note. That I had concluded not to let her “have the land, as the second payment was forfeited, and I had a right to take it back. Before I left she wanted to know if she made an arrangement for all the money between then and fall, I would take it and let her have the land. I replied that I presumed that I would only be too glad to do it.” The referee was authorized to believe this statement of the plaintiff, and it failed to show any valid extension of the time of payment. It showed merely a suggestion of defendant as to an alteration óf the contract which she might be able to make. ■ To that suggestion plaintiff answered that he presumed he would only be too glad to do it This was no agreement to extend the time of payment. The question as to whether there was any verbal extension of the time of payment was a question of fact passed on by the learned referee and the evidence is such that we would not be authorized to disturb his conclusion.

We have carefully considered the rulings made by the learned referee on the trial, to which exceptions were- taken by the defendant, and are of the opinion that there was no material error in either of said rulings which requires a reversal of the judgment. The judgment should be affirmed, with costs.

All concur.