Signer v. Newcomb — 6 N.Y. St. Rep. 315

Majority

p. 315

Jacob I. Signer, Resp’t, v. Alvah H. Newcomb, App’lt.

(Supreme Court, General Term, Third Department,

Filed January 24, 1887.)

Headnote

Contract—Consideration—When void for want of-.

The plaintiff agreed in a sealed instrument to obtain a certain deed for defendant, who was to pay him for it $500. Afterward, by paroi, the defendant agreed to obtain the deed himself, but promised to pay the plaintiff the agreed amount whether he, the defendant, had to pay anything for the deed or not. Defendant paid $500 for the deed, but refused to pay plaintiff. Held, that the paroi agreement, to make the non-performance of a covenant or condition in a sealed instrument the equivalent of a performance, was void for want of consideration, and that plaintiff could not' recover.

Appeal from a judgment in favor of the plaintiff upon the verdict of a jury, also from the order denying the motion made upon the minutes for a new trial.

The action was to recover $500 upon a sealed agreement, as modified by the parties.

p. 316

On the 19th of January, 1882, the plaintiff was and for many years had been in the possession of the lot known as the factory lot, at High Falls, Ulster county. On that day he conveyed the lot by quit-claim deed to the defendant for $3J5, which the defendant paid, and at the same time both parties entered into an agreement under seal which, - after reciting said conveyance, was as follows :

“Now, therefore, the said party of the second part hereby agrees to pay to the said party of the first part the sum of $500, whenever said party of the first part shall produce a ' deed from Margaret Snyder, deceased, formerly of Hones-dale, Pa. (daughter of David 0. Hasbrouck), to Isaac L. Hasbrouck, deceased, formerly of said town of Marble-town, conveying the said hereinbefore described lands and premises and water privileges to said Isaac L. Hasbrouck, or shall produce or be able to show and prove any other good and sufficient conveyance or title of the said lands and premises and water privileges from said Margaret Snyder to said Isaac L. Hasbrouck, by virtue of which said party of the first part might have had any title to said lands and premises and water privileges from said Margaret Snyder through said Isaac L. Hasbrouck.”

The lot had formerly been owned by the plaintiff’s former wife who died in 1842, and by her sister Margaret, now deceased, formerly the wife of Isaiah Snyder, as tenants in common. The parties understood that the plaintiff had acquired his former wife’s title, and the plaintiff believed that he had also acquired his sister Margaret’s title, by virtue of a deed given by her to her brother Isaac L. Hasbrouck, whereby, under the will of Hasbrouck, the title came to the plaintiff. At least, both plaintiff and defendant were agreed that if this deed from Margaret Snyder to Hasbrouck could be found, plaintiff’s title would be complete, and his deed to the defendant would convey the whole title. But the deed from Margaret to Hasbrouck could not be found. After the sealed agreement between the parties was made, they became satisfied that Margaret had never given any deed to Hasbrouck, and hence, because of Margaret’s death, leaving her husband Isaiah Snyder and their one child surviving her, which child subsequently died, the title to Margaret’s half was vested in Snyder, who lived at Harrisburg, Pa.

The plaintiff’s testimony which the jury accepted, was to the effect that he could not find the Hasbrouck deed and, that defendant would have to have a deed from Snyder; that defendant said if plaintiff got him a deed from Snyder, it would be satisfactory. Plaintiff intended to go to Harris-burgh to obtain it, but was sick and did not go. Defendant asked plaintiff to consent that defendant should go. That

p. 317

he was in a hurry to perfect his title and build on the lot, he would go free of cost to plaintiff, and if he got the title from Snyder, he would pay the plaintiff the $500, whether he paid anything to Snyder or not. The plaintiff consented. The defendant did go—obtained the deed to himself from Snyder. It appeared from defendant’s testimony that he paid Snyder $500. Defendant refused to pay plaintiff the $500.

John J. I/inson, for app’lt; John E. Van Etten, for resp’t.

The plaintiff did not perform and confessedly was wholly unable to perform his part of the sealed agreement. He had undertaken to show that the title, once in Margaret Snyder, had become vested in himself, but his inquiries convinced him, that instead of that being the case, this title was actually vested in Isaiah Snyder. When he communicated this fact to the defendant, the defendant in substance said to the plaintiff: “If Snyder will give me this title, I will pay you $500, just the same as if I had it from you.”

Whether this was a new agreement or an attempted modification of the old one, it seems to have been entirely destitute of consideration, and in either case void for that reason.

Since the plaintiff could give the defendant nothing, the defendant undertook to get the title he wanted from Snyder, and yet pay the plaintiff $500—for nothing.

Instead of the plaintiff performing one part of any substantial agreement, the defendant must perform for both parties, and yet pay the plaintiff for his non-performance. It seems a novel proposition that it is competent for parties to make by paroi, and without consideration, the non-performance of a covenant, or condition in a sealed instrument, the equivalent of performance. Suppose the defendant had said to plaintiff: “You have not performed; you have not sold me the Margaret Snyder title, and you admit that you have not got it to sell, and I must buy it of Isaiah Snyder. If I do buy it of Snyder, I will pay you what we have agreed it is worth, $500.” This would be a substantial statement of the agreement. That it was utterly destitute of any consideration moving from the plaintiff seems too plain for discussion. It is not relieved by the probable fact that the plaintiff would not have sold at all if he had actually known that he had so little to sell.

Judgment reversed, new trial granted, costs to abide the event.

Learned, P. J., and Bocees, J., concur.