Branaugh v. Basselin — 92 N.Y. Sup. Ct. 616

Majority

p. 616

Samuel Branaugh, Appellant, v. Theodore Basselin, Respondent.

Headnote

Interlocutory judgment reversed, without costs of appeal to either party, and demurrer overruled, with costs, with leave to defendant to answer on payment of costs of the demurrer. Appeal from an interlocutory judgment sustaining a demurrer to the complaint. The ground of the demurrer was that the complaint did not state facts sufficient to constitute a cause of action. —

We are of the opinion that the twelfth clause of the contract between the parties should be construed to mean that if, excluding the 1,000 cords therein reserved, there should not be as much as three cords per acre, then the defendant agreed to pay to the plaintiff one dollar per cord for the said 1,000 cords, to the extent only that the said lands failed to produce the said three cords per acre, and that, therefore, the liability of the defendant under said clause would not in any event exceed the sum of $1,000. We are, also, of the opinion

p. 617

that the complaint states a cause of action. The contract is a part of the complaint. It is alleged that, excluding the 1,000 cords that were reserved by the defendant, the land embraced in the contract actually produced 992)^3 less than three cords per acre; that the plaintiff has made payments on the contract and, relying on its pz*ovisions, has overpaid the defendant for all liability existing under the contract from the plaintiff to the defendant-the sum of. $992.50; that in consequence of such overpayment the defendant is liable to repay the same to plaintiff and the plaintiff has, before suit, demanded the same, and no part thereof has been paid; that the plaintiff 1ms fully performed all of the provisions of the contract to be performed by him. It is suggested on the part of the defendant that he has already paid $1 per cord for the 1,000 cords reserved, and that this action is to recover for a deficiency beyond that. This, however, does not appear from the complaint. It follows that the demurrer is not well taken and that the judgment must be reversed. Interlocutory judgment reversed, without costs of appeal to either party, aud demurrer overruled, with costs, with leave to the defendant to answer on payment of the costs of the demurrer.

Present — Hardin, P. J., Martin and Merwin, JJ.