
    Lucretia M. Whitaker, Resp’t, v. Almon T. Burrows, App’lt.
    
      (Supreme Court, General Term, Fourth, Department,
    
    
      Filed September 23, 1893.)
    
    1. Contract—Breach.
    In 1882, defendant received from P. and H., a conveyance of certain real estate upon which plaintiff resided, the consideration for which was . made up by $1,500 advanced by defendant, $300 advanced by plaintiff, and $600 to $700 in accounts, which, she held by assignment against P. and H. The sum advanced by defendant was the amount needed by plaintiff to complete the purchase of the property by her, and defendant agreed verbally with her to advance the same, take the title and convey to her when she paid him the sum and interest. In 1885 defendant sold the the property to third parties for $2,600. Plaintiff having refused consent to the sale, defendant demanded the money of her, and not receiving it, sold the property next day, and refused to give plaintiff any of the consideration received. Held, that, plaintiff not having been in default at the time of the sale, defendant must pay to her the amount received hy him, less the $1,500 and interest, with interest after the date of demand.
    8. Same—Evidence.
    In such case, it is proper to receive proof of the repairs done by the plaintiff to the dam upon the premises after her agreement with defendant and before he sold, one of the issues being, whether the agreement between the parties continued in force until the sale by defendant.
    Appeal from a judgment entered in Delaware county on the 23d July, 1890, upon the report of a referee in favor of plaintiff for $830, and interest from August 11, 1888, besides costs.
    ■ The action was commenced about August 11, 1888. In the complaint it is alleged that the defendant on 14th August, 1882, purchased and took from Charles M. Putnam and Benjamin Hathaway a conveyance of certain real estate, describing it; that the purchase was made and conveyance taken by defendant at the request and for the benefit of plaintiff; that of the purchase price the plaintiff paid about the sum of $840, and the defendant paid the sum of $1,500; that it was expressly agreed by and between the defendant and plaintiff that upon the payment by plaintiff to defendant of the balance of the purchase price, being $1,500 advanced and paid by defendant, he would convey the premises to her by a good and sufficient warranty deed ; that on or about August 14, 1883, the plaintiff paid defendant to apply thereon the sum of $90; that in or about July, 1886, the defendant, neglecting and refusing to perform said contract upon his part, conveyed the premises to other parties for the consideration of $2,600, and ejected or caused plaintiff to be ejected from the premises, and although requested so to do neglects and refuses to repay to plaintiff the moneys so paid and advanced by her and had and received by him as aforesaid ; that said agreement between plaintiff and defendant was in full force and effect at the time of such conveyance by defendant, and the plaintiff is still willing and ready to perform on her part, but that the defendant has thereby put it out of his power to perform on his part. Judgment is demanded for $930 and interest. The answer admits the conveyance to defendant and denies all the rest of the complaint.
    
      Alex. Cummings, for app’lt; More & Scott, for resp’t.
   Merwin, J.

The facts of this case, as authorized to be found from the evidence, are substantially as follows:

On the 14th August, 1882, the defendant received from Charles M. Putnam and Benjamin Hathaway, 2d, a conveyance of certain real estate, upon which the plaintiff resided with a Mr. Rood. Mrs. Rood was a sister of plaintiff, and the defendant is their brother. Putnam and Hathaway acquired their title on foreclosure of a mortgage, Eood being the owner of the equity of redemption. The consideration of the deed to defendant was made up as follows: $1,500 advanced by the defendant, $300 advanced by the plaintiff, and the balance was accounts to the amount of $600 to $700 which Eood had, or claimed to have, against Putnam and Hathaway, and which they were willing to allow on the purchase price. These accounts Eood had previously transferred to plaintiff. The negotiations ?for the purchase were between Putnam and Hathaway and the plaintiff or her agent. Putnam and Hathaway were willing to sell the property to the plaintiff, and the amount of the consideration was agreed on. After applying the accounts and the $300 which plaintiff had, she needed $1,500 in order to complete the purchase. She had made an arrangement with one Wheeler to advance this $1,500, but this arrangement fell through, and then the defendant was applied to. He evidently knew the situation that plaintiff was in, and the character of the proposed arrangement with Putnam and Hathaway, and that plaintiff had not sufficient means of her own to carry it out. He thereupon agreed verbally with her that he would advance the necessary $1,500, take the title to the premises, and convey the same to the plaintiff or any other person she wished when she paid him, or he received the $1,500 and interest In pursuance of this arrangement the deed was given to the defendant, and the consideration paid as above stated. The time of payment of the $1,500 was left indefinite, there being evidence that defendant said to plaintiff that she should not be disturbed as long as he lived. The plaintiff remained in possession and managed the property as owner. In 1883 she paid defendant ninety dollars, being one year’s interest on the $1,500. On the 24th June, 1885, the defendant contracted in writing to sell and convey the premises to other parties for the price of $2,600, and he subsequently conveyed to them the premises and received the consideration. The plaintiff refused to consent to this sale, or leave the premises, and she remained thereon till the summer of 1886, when she was dispossessed by the parties to whom the defendant sold. The defendant before making the sale did not give the plaintiff a reasonable opportunity to raise the money. According to her evidence he demanded the money one day and sold the property the next. He had previously induced her to believe that the money might remain as it was. The plaintiff, therefore, was not in default when the defendant made the sale and placed it out of his power to convey a good title. He knew that the plaintiff, or those she represented, paid all the original consideration except the $1,500 he advanced; that plaintiff paid the' $300, and that accounts were allowed as part of the price. After he made the sale he stated that morally he ought to pay the plaintiff all that he received over and above the $1,500 and interest, but denied his legal liability to do so. After a demand this action was brought.

This being the situation upon the evidence, it would seem to be a case for the application of the familiar doctrine that a party who refuses to go on with an agreement void by the statute of frauds, after having derived a benefit by a part performance,, must pay for what he has received, the other party not being in default. Lockwood v. Barnes, 3 Hill, 128 ; Erben v. Lorillard, 19 N. Y., 304; Day v. N. Y. C. R. R. Co., 51 id, 590. Under the arrangement between plaintiff and defendant and relying on defendant’s promise, the plaintiff made the payments which she did to Putnam and Hathaway, and the defendant in receiving the title-received the benefit of them as effectually as if they had been made to him, and then he passed them over to the grantors. The value was in the land, and the defendant had the title. The price he obtained when he sold was $2,600, while the price to Putnam and Hathaway did not exceed $2,500. The decision of the referee treats the interest of the defendant in the property as the amount of his advance and interest, and the plaintiffs interest as. $830, which is in fact the balance of $2,600, and does not exceed the payments of plaintiff. Interest is allowed from the time of the demand and the commencement of the suit

After the defendant sold the property it was not necessary for the plaintiff to make a tender, nor to resort to a remedy of specific performance against the purchasers from defendant. Smith v. Rogers, 42 Hun, 110; 3 St. Rep., 380; affirmed 118 N. Y., 675; 28 St. Rep., 981.

So that upon the merits the defendant has no good ground of complaint

The defendant further claims that the referee erred to the defendant’s disadvantage in several rulings upon evidence. ~ty& find, however, nothing that calls for a reversal. The contract called exhibit A. between plaintiff and Putnam and Hathaway was properly received in evidence. It was known to the defendant, he heard it read over, and it related to the transaction resulting in the deed to defendant At the trial, when it was admitted, no question was raised as to its execution. It was proper to receive the proof of the repairs done by the plaintiff to tire dam upon the premises after her agreement with defendant and before he sold. One of the issues under the pleadings was whether the agreement between them continued in force until the conveyance by defendant, and her acts as owner upon the property were competent to-be proved upon this subject. The defendant gave in evidence a lease to Mr. Rood from the purchasers from defendant after their purchase; for what purpose does not appear. It reflected upon Rood’s situation; he was a witness for plaintiff. It was not improper to allow Rood to be asked, by way of explanation, how he came to take the lease or what were his reasons for taking it. It is not necessary to refer to the other exceptions.

We think that substantial justice is accomplished by the judgment and that it should be affirmed.

Judgment affirmed, with costs.

Hardin-, P. J., and Parker, J., concur.  