
    Freeman F. Stammer, Respondent, v. Eben Harmon, Appellant.
    Third Department,
    May 2, 1906.
    Contract — real property— contract to secure title to .lands and execute : contract of sale in the future —■ tender of contract of sale prerequisite to action for purchase price.
    
      A written memorandum 'whereby the plaintiff’s assignor agreed to buy .a certain • farm in the future and then to enter into an executory contract to sell it to .the . defendant at a certain price, to he paid in installments, does not constitute a " contract of sale. The procuring of title and‘the execution of' a" new contract of sale are conditions precedent to an action to -recover any part?Of the agreed purchase price..
    When it is'.not shown that'the plaintiff’s, assignor ever tendered a contract of sale to the defendant according to the memorandum, no part of the purchase price has beco.me due, and a verdict of no cause of action is proper.
    Appeal by the defendant,. Eben Harmon, from a judgment-of the County Court of St. Lawrence county in- favor, of the'plaintiff, entered in the office of the clerk, of the. county of St. Lawrence on the 19th day of December, 1904, upon an order bearing date the 21st day of November, 1904, and.entered unsaid clerk’s■ office, reversing a judgment of a justice of the peace of the town ,of • Edwards, in said county, and also, from such order of reversal upon which the judgment appealed from was-entered. '
    •The. plaintiff,- Freeman F. Stammer, brought this action • in a Justice’s Court to recover the sum of $200, claimed to be due as. a part of. the .purchase price,upon a contract made between W. W. Stammer.and the--defendant, wiiereby defendant had. agreed to purchase and W. W. Stammer had agreed to sell a certain farm -for the sum of $800. A copy of the contract so referred to in the complaint is as follows, viz.: •
    “ M-emorandunnof ;an. Agreement,;,made.this. 20th -day. of September, i!9Ql, -between Warden W. ...Stammer..and .Eben. Harmon,..as follows: The said Stammer agrees to sell the Rushton premises of a little more than two hundred acres, situate in the Town of Fine, and on which Harmon now resides, to the said Harmon, as of Hov. 1st, 1899, for the sum of Eight hundred ($800) dollars, payable fifty dollars down and at least fifty' dollars and interest on unpaid sums, each year for three years, and the balance in seven equal annual payments, with accrued interest on all sums unpaid, payable annually with the .right to pay more in sums.not less than $25 at any time. The said Stammer reserves all sawing timber both hard and soft on that part of the premises lying between the river and the top of a large hill. In case the said Harmon shall cut any spruce or. basswood on the remainder of the premises for sale the said Stammer reserves $2 per cord for pulp wood and $4 per thousand for sawing timber and for stumpage to be applied on contract. Harmon is to pay all the taxes, and when the payments are fully made Stammer is to give the same kind of title which he gets from Mrs. Rushton. Harmon is to keep the buildings insured for the benefit of both parties and to keep the buildings and premises in as good condition as now; no live maple trees are to be cut in the sugar bush. As soon as the said Stammer gets his deed he is to give to Harmon a contract on the above terms. Any payment is to be indorsed as to the time it is made until these payments are fully made, the said Harmon is to hold the premises as tenant. Stammer is to' get deed and give contract within one year.
    “W. W. STAMMER, [l. s.] Seal.
    “EBEM HARMON, [l. s.] Seal.”
    This plaintiff claims that he-subsequently purchased such farm and the contract aforesaid from W. W. Stammer, and that, as the assignee thereof, he is entitled to recover from the defendant the $200 due thereon.
    The answer of the defendant was a general denial, payment, and an indebtedness of $200 set up as a counterclaim. -Upon the trial before a justice and a jury, the defendant claimed that the title to real estate came in question, and also that the total amount of the accounts exceeded $400, and, therefore, that the justice had no jurisdiction to try the action, and asked that it be dismissed, which motion was denied by the justice. The action then proceeded to trial, .and the jury rendered a verdict of no cause of action in favor of the defendant. From the judgment entered thereon the plaintiff appealed to the County Court, where the judgment was reversed, and from sucli judgment of reversal this appeal is taken.
    
      James O. Dolan, for the appellant.
    
      Ea/rl Bancroft, for the respondent.
   Parker, P. J.:

The question presented to us is, whether the return of .the justice; as it appears in this record before us, shows any error for which the verdict and judgment rendered in his court should be reversed by. the County Court. So far as the question of the-justice’s jurisdiction to hear the case is concerned we may Conclude, without discussion, that the justice’s ruling thereon was correct, since no appeal has • been taken therefrom by the defendant, and since the view which we take of the memorandum in question renders such ques; tioh immaterial. No ruling-was made- against the defendant on the trial, except the refusal to nonsuit; and so the question is narrowed down to Whether Upon the facts proven by the plaintiff, he had shown a cause, of action against the defendant.

The memorandum of September 20, 1901, is not entirely a clear one, yet an examination of it-, in my judgment, shows that it was not intended as a contract on defendant’s part to purchase, and on W. W. Stammer’s part to sell the farm in question. It was an undertaking on W. W. Stammer’s 'part that, he would* within one year, acquire the title to the farm,, and -as soon as -he had such title, and so was authorized ■ to sell and convey,;that -he would then enter into a contract to sell and convey it to the defendant; and defend^ ant on his part then agreed that he would enter into a contract to •pui'chase said farm for the price and upon the terms as to payment which are therein, stated. The defendant had beeii living on the-farm, as a tenant, since November 1, 1899 (a tenant of whom does not appear, possibly of Stammer, who may have had a contract for the place, although that does not appear), and possibly may have-cut some pulp wood and timber that it was contemplated should be applied upon the purchase price of the premises in the manner stated in this memorandum ; and hence they agreed that the sale should be. considered as made November 1, 1899; and, as I interpret this memorandum, it was intended that the contract that was to bp given by W. W. Stammer as- soon as he acquired his title, should be dated back to November 1, 1899.- Neither party intended that amy payments should be made upon this memorandum, or . become due thereon, but that the provisions therein stated should be copied into and made the terms of. the. new contract to be thereafter given by Stammer. That should be dated November' 1, 1899, and' the payment of fifty dollars down ” was intended to mean a payment of $50 as of that date, and further payments of $50 each were to be made for the three successive following years from that date, viz., up to ¡November 1, 1902. By that date the title would have been acquired and the new contract ready for execution, and all payments then accrued would be due upon and indorsed on such new contract.

In such interpretation of this memorandum, it is plain that the procuring of title and delivery and execxition of the new contract, so called, was a condition precedent to any demand for any part of the purchase price of sxich farm. If Stammer had procured the title and tendered such contract, the defendant would then have been bound to accept and execute it, and then make the payments as therein specified, for by signing the memorandum above set forth he had agreed to do so. But in such memorandum defendant nowhere agi'ees to purchase the premises, or to make any payment thereon. It is to be notieed-that he nowhere therein agrees to do anything. He merely signs such memorandum, and, therefore, the •extónt of his obligation thereon is to accept and execute the contract when tendered to him — that it all — and when he has done that, then for the first time he has undertaken to pxxrchase the farm and make the payments as specified in such contract.

It is not claimed that W. W. Stammer ever tendered to defendant any contract whatever, such as by the memorandum he had agreed to. do after procuring title to the farm, much less is it claimed that any such contract'had ever been executed by the defendant. No part of the purchase price of such farm had ever become due apd owing from defendant to W. W. Stammer, or to any assignee of his. Their plan that Stammer would get title to the farm and contract it to the defendant had entirely fallen through. It does not even appear that he, Stammer, got title to the farm within the year. For these reasons, not ’even W. W". Stammer would have had any right to recover anything whatever upon such memorandum from the defendant, and -the jury were correct in finding that the plaintiff had no claim against him thereon. Judgment on their verdict should have been affirmed, instead of being reversed, by the County Court.

The judgment appealed from must, therefore, be reversed, and the judgment of the justice must be affirmed, with, costs in the court below and of this appeal.

All concurred.

Judgment of the County Court reversed, and judgment of the justice affirmed, with costs in the court below and of this appeal.  