
    Sarah A. Russell, Respondent, v. Michael J. Crowley, Appellant.
    Third Department,
    November 29, 1911.
    Trial — denial of motion for direction of verdict, not followed by a request to go to the jury — contract to convey real estate made by one of several heirs — contract to convey title of other heirs — construction -r- when damages not controlled by liquidated damage clause.
    Where at the close of a trial the defendant asks the court to direct a verdict in his favor upon two counterclaims interposed by him, and the court submits one of the counterclaims to the j ury, and reserves the other counterclaim for his own consideration, to which the defendant takes an exception but makes no motion-for leave to go to the jury Upon the question reserved by the trial court, the decision as to that question will be treated on appeal as one upon a question of fact and law submitted by consent.
    One Russell, who, as one of the heirs at law. of a decedent, had an undivided interest in a farm, entered into a written contract with one Crowley, in which she agreed to convey the farm to Crowley for $2,000.
    Thó contract first contained a specific covenant to. convey in fee simple.
    It then provided as follows:
    “ The party of the second part (Crowley) covenants and agrees to purchase of thhsaid party of the first part (Russell) the premises above described, and to pay and secure to be paid therefor, the sum of two thousand dollars ' in the manner following, that is to say, to be due and payable as fast ■ and as quick as'she can get title of same from the Joseph Lamping heirs, she being one of said heirs.
    “ On payment of the sums to be so paid soon as she can get title from the heirs, the party of the first part, covenants on that day to deliver to the party of the second part the deed aforesaid. * * * .
    “ The party of the first part covenants and agrees that ón the --day, and upon the. performance by the party of the second part of the covenants herein contained on his part to be performed, and- soon as she can obtain deed from other heirs, she will deliver to the party of the second part, quiet and peaceable possession of said premises, in as good condition as they now are, natural wear excepted.”
    The contract further fixed the sum of $200 as liquidated damages for a . failure of performance by either party.
    On the same day that the contract was drawn a lease was made of the land between the same parties, which lease provided: “In the event that party of second part (Orowley) does not buy and get title to said farm within the next year, then -and in that event he has the privilege of renting said place two years longer at same terms of rent.”
    The contract was executed February 28, 1907. June 1, 1907, Russell seemed one of her coheirs to deed- to Crowley a one-t'enth interest in the property, for which Crowley, paid. Plaintiff made no further attempt to procure conveyances to Crowley of the Other interests. In September, 1907, an action to partition the premises was brought by one of the owners, and on the partition sale which took place in 1909 Crowley . purchased the property for $2,0.80.
    
      Held, that Russell was liable to. Crowley for breach of -the contract;
    That the specific covenant on the part of Russell to convey to Crowley was not made conditional by the provision that the conveyance should be made as soon as title could be made, as the latter provision simply fixed the time for the performance of the specific covenant;
    That Russell was bound to use reasonable diligence to procure the necessary conveyances from the other hems;
    That there had been ar.default before the partition sale, as she had made no attempt to procure title from the other heirs, and in any event she could have purchased at the partition sale and then offered a conveyance to Crowley; ', ■
    That Crowley was excused from the necessity of making tender because Russell was at no time in a position where she could have performed had a tender been made;
    That Crowley having purchased the premises for $3,080, and haying by reason of his one-tenth ownership of the premises been obligated to pay one-tenth of the costs of the partition action, was not entitled to recover the full $300 liquidated damages, but only the $80 paid in excess of the contract price, plus one-tenth of the costs.
    IIoueiiTOX and Betts, JJ., dissented.
    Appeal "by the defendant, Michael J. Crowley, from, a judgment of the County Court of Franklin county in favor of the plaintiff, entered in the office of the clerk of said county on the 8th day of December, 1910, upon the verdict of a jury (except as to a counterclaim which was dismissed by direction of the court), and also from an order entered "in said clerk’s office on the k7th day of June, 1910, denying the.defendant’s motion for a new trial made upon the minutes.
    
      George J. Moore, for the appellant.
    
      Earl W. Scripter, for the respondent.
   Smith, P. J.:

This action is brought to recover the balance due upon a lease executed between the plaintiff and defendant. The cause of action is admitted. The defendant, however, has asserted two counterclaims, both of which have been disallowed. As to one of those counterclaims he makes no question upon this appeal, the jury having decided against him. The other counterclaim was taken from the jury by the court and was decided adversely to his contention, and this decision of the County Court presents the sole question here for review.

At the close of the evidence the defendant asked for a directed verdict in his favor upon the counterclaim. The trial judge submitted the question upon one of the counterclaims and reserved for Ms own decision the question raised by the other counterclaim. To this an exception was taken. But no request was made to go to the jury upon the question reserved by the trial court, and defendant having made a motion for a directed verdict, and not having requested to go to the jury upon the question, reserved, the trial court might properly decide "that question, and his decision can only be reviewed as the decision of a court upon a question of fact and law submitted to him by consent.

This action was begun before a justice of the peace in the town of Fort Covington. He rendered a judgment in favor of the plaintiff for forty-nine dollars and forty-six cents, and three dollars and twenty-six cents costs. The defendant thereupon applied to the County Court for" a new trial. In County Court the plaintiff recovered a verdict for forty-five dollars, which with the costs make the judgment from which the appeal is taken.

The lease upon which plaintiff sues was made in February, 1907, for the term of one year from April 1, 1907, for the sum of seventy dollars. Upon that twenty-five dollars was paid, leaving the sum of forty-five dollars due thereon, for which plaintiff has recovered judgment. At the time of the execution of the-lease there was also executed between the parties a land contract. Inasmuch as the question here for determination depends upon the construction of that contract, it will be given in full:

“Article of Agreement,

“Made and entered into this 28th day of February, in the year of our Lord one thousand nine hundred and seven, between Sarah A. Russell, of the town of Fort Covington, N. Y., of the .first part, and Michael J. Crowley, of Bombay, N. Y., of the second part, witnesseth, That the said party of .first part, in consideration of the, covenants and agreements hereinafter contained, to be performed on the part of the party of the second part, does hereby covenant and agree to and with the said party of the second part, to sell and convey to him, in fee simple, by a good quit-claim deed of conveyance, free and clear from all liens, rights of dower, or other incumbrances (unless hereinafter specified), All that piece or parcel of land, situate in the: town of Bombay, County of Franklin, and State of New York, briefly described as follows:

■ “Situate in said town of Bombay, Franklin County, State of New York, and situate on the Helena road south of St. Regis River and about one mile west of Hogansburg, and known as the Joseph Lamping farm, containing 52 acres of land, more or less.
“The party of the second part covenants, and agrees to purchase of the said party of the first part the premises above described, and to pay and secure to be paid therefoi’, the sum of two thousand dollars in the manner following, that is to say, to be due and payable as fast and as quick-as she can get title of same from the Joseph Lamping’ heirs, she being one of said heirs.
“ On payment of the sums to be so paid soon as she can get title from the heirs, the party of the first part, covenants on that day to deliver -to the party of the second part, the deed aforesaid.
“ The said deed shall be delivered and the money paid at the office of W. Gr. Cushman, in the town of Eort Covington, N. Y. The party of the first part covenants and agrees to receive genuine current funds for the payments hereinbefore expressed;
“The party of the first part covenants and agrees, that on the-day, and upon the performance by the party of the second part of the covenants herein contained on his part to be performed, and soon as she can obtain deed from other heirs, she will deliver to the party of the second part, quiet -and peaceable possession of said premises, in as good condition as. they now are, natural wear excepted.
“The party of the second part agrees to pay all taxes and assessments that shall be paid or assessed on said premises during the term he shall have possession under this agreement. It is further covenanted and agreed, that in case the party of the second part has possession of said premises before the execution and delivery of said deed, and in case of failure on his part to perform any of the covenants, herein contained, he will yield and deliver to the party of the first part, quiet and peaceable possession of said premises; that the party of the first part may immediately after such failure re-enter and take possession of the same, without any previous notice to quit, in reference to any legal proceedings to recover possession thereof.
“It is mutually covenanted and agreed that in case either party fails to perform the covenants herein agreed to be performed by such party, the party so failing shall and will pay to the other the sum of two hundred dollars, which, sum is hereby fixed and agreed upon as the liquidated damages for such failure, and that the same shall in no event be considered a penalty.
“In witness whereof, the parties have hereunto set their hands'.and seals the day and year first above written.
“ Sealed and delivered in the presence of
“SARAH A. RUSSELL. [l. s.]
“M. J. CROWLEY. [l. s.]”

Under that agreement, about the first of June, the plaintiff secured one of the heirs to deed to the defendant a one-tenth share in the property, for which he paid the sum of $200. .Plaintiff made no further attempt to procure the shares of the other parties at any time. In September, seven' months after the making of this agreement, an action for partition was brought by an- owner of another share, which resulted in a sale in 1909, upon which sale defendant purchased the- property for $2,08(1 This action was brought about June, 1909, before the sale in partition. The coimterclaim upon which the question here arises was for the recovery of. the $200 stipulated damages in the contract between plaintiff and defendant.

I am unable to construe this contract as has the learned county judge. The contract contains a specific covenant to sell to the defendant for $2,000. The provision to convey, as soon as title can be obtained, fixes simply the time for the performance and does not condition the covenant to convey itself. Plaintiff was bound to use reasonable diligence to procure the conveyance from the other heirs. This she has clearly failed to do. She could have purchased at the partition sale, and then offered a conveyance to the defendant, but this she failed to do. But there was a default before the. partition sale. She made no attempt to procure title from the other heirs. She was at no time' in a position when she could perform had defendant tendered the money. For this reason a tender by defendant was waived. In 28 American -and English Encyclopaedia of Law (2d ed. p. 9) the text reads: “Neither need the purchase money be tendered by the vendee when the vendor is unable to convey the land.” In Davis v. Van Wyck (64 Hun, 186) the vendor had parted with the land and this was held to excuse a tender because the vendor had put.it out of his power to convey. Plaintiff is in no better position to convey when she has no title and has made no endeavor to get one. With greater reason, therefore, could he insist that tender was excused after the partition action had been commenced in the fall of 1907, a lis pendens filed, and he had been brought into court as a defendant. At the trial in Justice’s Court plaintiff testified that she could not carry out the provisions of the contract. Evidence of the sale in partition was given in County Court by defendant without objection and defendant was denied relief only on the ground that plaintiff was not obliged to procure title from the other heirs, and that her . obligation only began if she should so procure title. Differing as we do from the trial judge in his construction of the contract, we find that plaintiff is clearly liable for a breach of her contract, and primarily liable for the full $200, the stipulated damages.

But these damages, though stipulated, the defendant himself has lessened by purchasing the property for $2,080. The costs of the action amounted to $383.27, of which the defendant was required to pay one-tenth, or $38.32. The actual damage to the defendant, therefore, is made up of the $80 he paid in excess of the price which he was to pay to the plaintiff and the $38.32, one-tenth of the costs of the action. To the extent, therefore, of $118.32 his counterclaim was clearly right and should have been allowed.

The judgment and order should, therefore, be reversed on law and facts, and a new trial granted, with costs to appellant to abide the event.

All concurred, except Houghton, J., dissenting, in opinion, in which Betts, J., concurred.

Houghton, J. (dissenting):

The contract to convey is ambiguous and I think the interpretation given to it by the learned county judge was correct.

It is trae that in one part of the contract the plaintiff agreed to convey, importing a conveyance to herself and a reconveyance to the defendant; but other portions of the contract and the interpretation given to it by the parties themselves show that,, what the plaintiff was to do was' to obtain conveyances to the defendant from the heirs of Joseph Lamping if she could and as fast as she could. The covenant on the part of the defendant was to pay for the whole property the sum of $2,000, and “ in the manner following, that is to say, to be due and payable as fast and .as quick as she [the plaintiff] can get title of same from the Joseph Lamping heirs, she being one of said heirs.” Then the following language is.used: “On payment of the sums to be so paid soon as she can get title from the heirs, the party of the first part [plaintiff] covenants bn that day to deliver to the party of the second part the deed aforesaid.” The same language is used in another part of the instrument with respect, to the plaintiff obtaining title as soon as she could.

Both the plaintiff'find the defendant assumed that the plaintiff was carrying out the contract by producing her sister to the defendant, who was willing to convey for the sum of $200, the defendant taking her deed and paying her that- sum.

The plaintiff testified that what she supposed she-was agreeing to was to obtain conveyances by the heirs to the defendant if she could. The language of the contract is “on payment of the sums tobe so paid,” using the plural, and the defendant himself testifies that he told the plaintiff that he wanted the other titles as soon-as she could get them.. The defendant also testified that Mr. Cushman, the draftsman, communicated with him and asked him if he would take conveyance of the plaintiff’s share, and he said that unless he got all the shares her share would not do him any good. ■ '

The lease and. the contract to convey were drawn on the same day and together made practically one transaction. The lease was for the term of one year, but contained the further clause: “In the event that party of second part does not buy and get title to said' farm within the next year, then and in 'that event he has the privilege of renting said place two years longer at same terms of rent.” The use of the term “buy and get title ” in the connection in which it is employed indicates that the defendant expected to purchase from time to time such shares as he could until he got complete title, and not that the plaintiff was to get title in herself and then convey to him. Besides, the defendant expected that it would take a long time to gather the title together, as indicated not. only by the language of the contract to convey, but by the clause in the lease above quoted. A reasonable time, therefore, under all the circumstances was not a few weeks or even a few months. .Certainly it cannot be claimed that time was the essence of the contract. Before that reasonable time had expired, and on the 1st day of September, 1907, a partition action was brought, without any procurement of plaintiff, and the defendant seems to have assumed that it was useless to attempt to obtain conveyances from any of the heirs thereafter.

But if the contract to convey is. to be interpreted as indicated by the prevailing opinion, still I think the defendant had no cause of action on his counterclaim, for the reason that he had never put the plaintiff in default by a proper tender and demand that she make conveyance to him.

The summons in Justice’s Court was issued on May 7, 1909, and defendant filed his answer setting up his counterclaim on May eighteenth. Various adjournments were had and judgment was rendered on June twenty-sixth. The sale under the partition action occurred in July or August following. The defendant testified that he never had any talk with the plaintiff about the title of the other heirs or herself after July or August, 1907, and then he only told her that the money for her share was ready any day she wanted it. He further testified that he never demanded a conveyance of the plaintiff’s share other than telling her he was ready for it and wanted it any time, and that she never refused to convey it to him. Defendant had, therefore, never tendered the purchase price and demanded a "deed from the plaintiff before May 18, 1909, when he set up his counterclaim for liquidated damages. If the plaintiff agreed by her contract to convey to the defendant at all hazards, payment. of the money to her and delivery of the deed were dependent and concurrent acts. In Higgins v. Eagleton (155 N. Y. 466, 473) it is said: “It is a well-settled rule that to entitle a party to recover damages for Ihe breach of an executory contract of this character [conveyance of land] he must' show a tender of performance upon his part and a demand of performance by. the other party: It must he established in some way that the other party is in default, or that performance, or tender of performance, has been waived.” In order that the defendant might have the right to enforce his claim for liquidated damages, under the contract,- it is incumbent upon him, .therefore, to show that he had made a tender of the money and demanded a deed, and that the plaintiff had refused or neglected to furnish it, unless the plaintiff had absolutely refused to convey or put it out of her power so ■to do. She never refused to convey and she never put it out of her power to make conveyance. While it might have been embarrassing to obtain the title of the various heirs after the partition action had been instituted, if the defendant had done what he was obliged to do, to wit, demanded performance and made a tender of the money, it cannot be assumed that she would have been unable to obtain the conveyances and terminate the partition action.

Nor can it be said that the plaintiff so neglected to obtain title as to render her liable. Whether there was such neglect must be judged by all the circumstances. Time was not important. A reasonable time had not expired when the partition action was begun. After that action was begun. the defendant never spoke to the plaintiff on the subject, as he himself testified. I think it was incumbent upon the defendant, under the peculiar circumstances disclosed, to at least request the plaintiff to obtain conveyances from the heirs during the two years in .which the partition action was pending before she should be charged With actionable negligence.

For these reasons I think the judgment should be affirmed.

Betts, J., concurred.

Judgment and Order reversed on law and facts and new trial granted, with costs to appellant to abide event.  