Stiles v. Benjamin

—July 21, 1886, Frances E. Ufford executed and delivered to the defendant her bond, and mortgage as collateral thereto, to secure the sum of $1,700, upon property described in the mortgage, situated in the village of Deposit. On the 17th of August, 1887, plaintiff’s testatrix, then bearing the name of Mary L. Chase, entered into a negotiation with the defendant in respect to the said mortgage, and on that day she advanced to him the sum of $1,500, and took from him a written instrument containing the following language;

“Received from Mary L. Olíase one thousand five hundred dollars as a payment on bond and mortgage from Mrs. F, E. Ufford to me of four thousand seven hundred dollars, to be received and applied by me thereon, as between me and said Mrs. Chase, In ■order to protect Mrs. Mary L. Chase for any payments she now makes or may hereafter make, I agree when the money received by me shall amount to the full amount payable by said bond and mortgage, principal and interest, at the request of said Mary L. Chase, and payment by her of all expenses, to transfer and assign to her the said bond and mortgage, unsatisfied as to all payments made by her, to enable her to hold the same as a security for the money so advanced by her,—the intent and understanding being that, as between us, the payment, shall be absolute; Mrs. Chase having no rights, except the right above provided, of assignment on payment to and receipt by me of the whole amount.

“Dated, August 17, 1887.” John Benjamin.

Subsequently payments were made,—on July 2,1888, $500; July 25,1889, $500; May 26, 1890, $100; October 27,1891, $200; and September 4, 1893, $10. Mary Stiles, nee Chase, died, leaving a last will and testament,which was admitted to probate, and the executor therein named having died, the plaintiff was appointed and qualified as administrator with the will annexed in February, 1894. It is alleged in the complaint that in March, 1894, the plaintiff tendered to the defendant the amount remaining unadvanced upon said mortgage, and demanded that the defendant execute to him an assignment of the bond and mortgage “in pursuance of the agreement.” And it is alleged the defendant neglected and refused to execute the said assignment. And it is alleged in the complaint that thereafter the defendant sold, assigned, transferred, and delivered to one Cook the bond and mortgage, who became the owner and holder thereof, and who commenced an action to foreclose the. same. Defendant, in hia answer, admits the execution of the agreement, substantially as set out in the complaint, and he also admits that he, “ before the commencement of this action, sold, assigned, transferred, and delivered to David B. Cook said bond and mortgage by an instrument in writing conveying his interest therein; and he shows upon

“The morning of the 27th of January, 1894, Mr. Benjamin said ‘I have got to assign that mortgage to Cook.’ And I said, ‘What is the reason we can’t raise the money? And I said, ‘We can raise the money in 24 hours, the whole $4,700.’ He said, ‘I can’t sell it to you,’ and went out. He went off and said he couldn’t sell it to us. One time before that he agreed to sell it to me. * * * He afterwards declined to transfer the mortgage to me and said he had got to assign it to Cook and did assign it to Cook.”

The defendant, as a witness, disputes the tender, and states there was some conversation looking to his foreclosing the mortgage and bidding the property in to protect the interest of the estate represented by the plaintiff. The court has resolved the conflict in the evidence in that regard in favor of the plaintiff, and we see no occasion upon looking into all the circum&tances'disclosed in the evidence, to question the propriety of the findings made favorable to the plaintiff after applying the rule which has so frequently been applied where the evidence in conflicting. See Smith v. Mc-Cluskey, 45 Barb. 610 . On the 3d of February, 1894, the defendant assigned, by a written instrument bearing that date, the bond and mortgage, “for a good and valuable consideration to him in hand paid, * * * bearing date the 21st day of July, 1886, made by Frances E. Ufford to me, said John Benjamin, to secure' tho payment of the sum of $4,700.” That assignment was acknowledged, and under it Cook acquired possession, and claimed

We think "the agreements made by the defendant with Mrs. Chase were to the effect that the defendant would sell to her the bond and mortgage. The agreement made by him was broken. The excuse the defendant gave for breaking the contract was “that there was a contract made” to the effect that he would assign the mortgage to Cook. We think the excuse is entirely insufficient. The defendant, when he undertook with the testatrix to give to her an assignment of the bond and mortgage, and received her money in pursuance of the arrangement that he should transfer and sell the mortgage to her, became liable to carry out his contract, and it was his fault that he did not put a condition or qualification in the agreement if one was needed, that in the event he was not required to assign it to Cook, he would assign it to her. He made an undertaking that for the money he would assign to her the bond and mortgage. He failed to do so. She has suffered damages by reason of his failure to the extent of the amount of moneys which she has paid upon the contract, which he now fails to fulfill, and whether the action be regarded as one for breach of contract, and damages in consequence thereof to the extent of the money which she has paid, or whether it be regarded as an action for money had and received, because of the failure of the party to perform his agreement,—the rule of damages adopted by the trial judge is right Smith v. McCluskey, 45 Barb. 615 . In that case Bodies, J., said:

“There is no doubt but that the defendants had a right of action for the money paid by them on the contract. The contract had not been fulfilled. The party with whom they contracted had not performed his part of the agreement, and they liad a right of action to recover their damages by reason of such omission. Their damages, too, were the sums of money they had paid on the contract. * * * Such money could be recovered back in an action for breach of the agreement.” Thompkins v. Dudlev, 25 N. Y. 272 ; Ward v. Hudson River Building Co., 125 N. Y. 236 ; 34 St. Rep. 934 ; Stewart v. Stone, 127 N. Y. 507 ; 40 St. Rep. 314 .

.Undoubtedly the action for money had and received is totee disposed of upon equitable grounds. Otis v. Crouch, 89 Hun, 551 ; 69 St. Rep. 646 . Applying the rule that is applicable to such an action, we are of the opinion that in equity and good conscience the defendant “ ought not to retain the money” which, ex equo et bono, belongs to the plain till. Nor do we think the circumstances that the plaintiff’s testatrix may have had some information that the defendant was under some stringent obligation to assign the bond and mortgage to Taylor and Gumming, or some interest therein, was sufficient to defeat this action. The defendant deliberately put it out of his power to comply with his agreement made with the testatrix, and, having done so, he ought to return the money which he received from the testatrix, advanced in the faith that she was to have an, assignment therefor of the bond and mortgage in question. We are satisfied with the views

All concur. .