
    Lillie Lawlor, Plaintiff, v. The Densmore-Compton Building Company et al, Defendants.
    
    (Supreme Court, New York Special Term,
    
      May, 1909.)
    Consideration — Necessity of consideration and of mutuality of obligation— Mutuality of obligation.
    Contracts — Performance of contracts — Waiver of breach — Estoppel to assert breach. i
    Uncertainty — Indefinite time or manner of performance — Contract to execute mortgage without specifying time of payment.
    Where a corporation agreed to sell a certain apartment in an apartment house, the erection of which the corporation had undertaken, and the purchaser signed a subscription agreement fixing the price, but by a contemporaneous writing it1" was provided "that payment might be made by application of the ¡commissions which the purchaser might earn through her efforts j in procuring purchasers of other apartments in the building, ,and the purchaser, in pursuance of such agreement, performed services in obtaining other purchasers and became entitled" to commissions amounting to a large sum, the question of the presence or absence of mutuality in the contract is not raised, as the contract has been executed to the extent of the commissions earned and the ¡vendor has received the benefit of the vendee’s partial performance'.
    In such a case, the contract will not fail because the agreement does not specify the duration of the mortgag'e; but equity may fix a reasonable time within which the indebtedness it represents shall mature. (
    Although the vendee, in her subscription; agreement, became chargeable with payment of the purchase price in cash, by the vendor’s promise to accept payment in commissions she might earn in selling other apartments, upon the faith of* which she rendered services and earned commissions, the vendor - is estopped from asserting her default in making payment in cash.
    Issues of law upon demurrer to complaint for insufficiency of substance.
    Claude Gignoux, for defendants and demurrer.
    Ernest W. Cushing, for plaintiff, opposed.
    
      
       See 60 Misc. Rep. 555.
    
   Bischoff, J.

This action is brought for specific performance of a contract entered into by the plaintiff with the defendant Densmore-Compton Building Co., a corporation, whereby the latter agreed to sell to the plaintiff a certain apartment in an apartment-house, the erection of which the corporation had undertaken. The selling price was to be $22,500, and the plaintiff signed a subscription agreement whereby she was to purchase the apartment at that price; but, by a contemporaneous writing, it was provided that payment might be made by application of the commissions which the plaintiff might earn through her efforts in procuring purchasers of other apartments in this building; and, in the event of her commissions not being sufficient to meet the full price, the defendant agreed to loan her the balance upon a mortgage on the apartment so sold to her, which mortgage could be paid off by applying commissions to which the plaintiff might become entitled in selling apartments in other apartment buildings upon this co-operative ” plan which the defendant expected thereafter to erect. Alleging the defendants’ refusal to carry out the agreement and to give her possession of the apartment as agreed, upon completion of the building, the plaintiff prays for an injunction to restrain the interference with her possession and occupation and for specific performance of the contract. In support of the demurrer to the complaint for insufficiency, it is urged that this agreement lacks mutuality, that it is too indefinite to be enforced by a court of equity, and that an attempted enforcement would involve the court’s direction or supervision of the plaintiff’s rendition of personal services, if the agreement is to be mutually carried out. I find no such difficulty with the substantial enforcement of the contract. Certainly, the plaintiff, upon the facts alleged, should be afforded relief, if the court has power to grant it; and the technicalities sought to be invoked to sustain this demurrer do not, in my view, suffice for the purpose.

It appears from the complaint that, pursuant to the agreement, .the plaintiff performed services in obtaining (purchasers of the apartments in the building and has become entitled to commissions in the sum of $4,750. To this extent, the contract had been executed on her part, and the defendant corporation has received the benefit of her performance. Thus the question of the presence or absence of mutuality, which might arise in the case of an attempt to enforce an agreement purely executory in its nature, is not present here. Having made the part payment contemplated by the parties, the plaintiff became entitled to possession of the apartment upon her executing a mortgage for the balance of the purchase price; and, while the duration of that mortgage was not expressed by the agreement, equity may still enforce the convention of the parties, according to their apparent intention, and fix a reasonable time within which the principal debt should mature. When treating of a similar situation, in Roberge v. Winne, 144 N. Y. 709, the court said: e‘ That the mortgage should have a year to run was not unreasonable and affords to the defendant no- just ground of complaint. A verbal agreement of this character will not be permitted to fail in equity because the parties have not distinctly specified all the details, but the court will look to the substance of the transaction. There can be no claim that the decree does any injustice to the defendant in respect to the terms of the mortgage which it requires her to execute.” See also Hale v. Omaha Bank, 49 N. Y. 626. Tor a further reason, the complaint states a cause of action for equitable relief in the form of specific performance, the conditions to the granting of that relief on the trial being made ' to depend upon whether the defendants’ promise to take part of the consideration for the sale of the apartment in the form of a mortgage, payable out of commissions, was enforceable.

The plaintiff signed, a written agreement whereby she became chargeable with payment of the purchase price in cash, and she was entitled to a conveyance or “ proprietary lease ” of the apartment, should she make this payment. If the defendant Densmore-Compton Building Co. is right in its contention, that its own separate but contemporaneous promise to take a mortgage payable from commissions to be earned is for some reason unenforceable according to its terms, still the plaintiff did not waive such benefits as accrued to her under the main subscription agreement; and the defendants’ promise to her, upon the faith of which she rendered her services, so far operated as a sufficient representation to excuse her failure of prompt payment of the installments of cash subscribed and to estop the defendants from asserting her default. All the necessary facts being pleaded, equity may enforce the agreement, whether by requiring, upon the plaintiff’s part, the payment of cash to the extent of the balance of the purchase price, or by fixing a time within which the mortgage for the balance of the price, above commissions earned, should mature, if, in the judgment of the court, on the trial, the evidence affords a sufficient basis for such a direction.

The demurrer is, therefore, overruled, with costs, with leave to the defendants to plead over on payment of costs within twenty days.

Demurrer overruled, with costs, with leave to defendants to plead over on payment of costs within twenty days.  