Majority
p. 557Solomon Jones, App’lt, v. Joseph Wittner, Resp’t. (Supreme Court, General Term, First Department, Filed June, 1894.)
Headnote
JEviDBrrcE—Parol.In an action for specific performance of a contract for the exchange of real estate, a receipt, which recites generally the terms of the arrangement and provides that a more formal contract should be executed subsequently, does not preclude the admission of parol evidence to show the actual knowledge on the part of the plaintiff of incumbrances on the premises sold, not mentioned in the receipt.
Appeal .from judgment entered after trial at special term.
Adolph Cohen (B. N. Cardoza, of counsel), for app’lt; David Leventritt {J. H. Cohn, of counsel), for resp’t.
This action wag brought to compel the specific performance of an alleged contract for the exchange of property in the city of New York. In the disposition of this appeal it is not necessary to state with particularity the facts which were developed by the testimony. It would appear from the evidence that the plaintiff was a mere dummy, if he ever had any substantial existence ; and that his name was used for the purpose of concealing from the defendant the real parties with whom lie was dealing.
After a considerable number of negotiations, in which an un
p. 558
usual number of alleged brokers seem to have intervened, a payment on account of the contract to be entered into was made by the plaintiff to the defendant; and a receipt given, reciting generally the terms of the proposed contract. It appeared upon the face of this receipt that a more formal contract was to be entered into. At the time fixed for the execution of the formal contract, objections were raised upon the part of the persons pretending to represent the plaintiff, but really representing themselves, that certain leases were upon the premises, and that they would not execute the contract unless additional time was given them and concessions made in respect to certain mortgages and payments. The evidence more than justified the finding that, at the time of the giving of the receipt in question, and the making of the payment, the parties interested were told of the existence of these leases upon the defendant’s premises, and that this excuse in respect to the leases was availed of for the purpose of securing their wishes, in reference to the change of terms, they having come to the conclusion that they had probably paid a little too much for the property in question. It is urged that the receipt upon the part of the appellant was a complete contract, and that, therefore, the defendant could not show that the existence of these leases was known to the parties interested, and had been disclosed to them prior to the making of the receipt, upon the ground that it varied the terms of the contract; but it is apparent, upon a reading of this instrument, that it was not intended to be the contract between the parties, but it was a mere general statement, and that the parties were to meet together for the purpose of signing a formal contract, and at that time making an additional payment. The parties having made the payment on account, with full knowledge of the existence of these leases, they could not avail themselves of the objection, when the formal contract came to be signed, that the receipts for money did not mention these incumbrances. As has already been suggested, this question in regard to the leases was a mere afterthought, they having come to the conclusion that they desired a variation in the terms agreed upon, and it was attempted to be used for that purpose. Under these circumstances, certainly, the plaintiff cannot come into a court of equity and claim either a completion of this contract or a recovery of the payment.which he has made on account. He refused to complete; he failed to comply with the agreement in respect to the execution of the instrument, and it was too late for him, upon the trial, to attempt to put the defendant in the wrong when the latter had been ready and willing to perform his part of the agreement, and the plaintiff for the real parties in interest had refused to carry out their part. It is true that there was an attempt made upon the part of the plaintiff to show that there had beén an offer to perform on the 20th day of August, the day at which the title was to have been passed. But the evidence upon the part of the defense is that there was no such tender as was alleged on the part of the plaintiff; but that only„the money which was to have been paid on the 21st day of July was tendered, and that there were no papers offered or shown. It is manifest that
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the whole plan upon the part of the parties operating in the name of the plaintiff was to force the defendant to accept different terms from those which he had agreed upon, and upon his refusal to alter the same, they refused to carry out the contract. The defendant was not called upon to hold his property subject to the whims and caprices of these persons.
The judgment should be affirmed, with costs.
Follett and-Parker, JJ., concur.