
    William B. Smyth, App’lt v. George W. M. Sturges, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1888.)
    
    1. Contract for sale of real estate—Right of vendee to refuse to COMPLETE WHEN CONDITION OF PROPERTY ALTERED.
    The defendant entered into a written agreement, which contained no reservation, with one Trask by which the latter agreed to sell and convey to defendant certain property “free from all incumbrances.” Afterward and before the time fixed for delivering the deed a tenant removed gas piping, partitions, lead pipe, plumbing work, etc., all of which formed part of the building when said agreement was entered into, which belonged to said tenant. The defendant refused to take title and this suit was brought for damages by plaintiff, to whom Trask had assigned his claim. Held, that the defendant was entitled to the properties in the condition in which they were when bargained for, and his refusal to take them in an altered and inferior condition was not a breach of his contract.
    
      % Same—Vendor—Right to maintain action for damages.
    In such an action the vendor must be held strictly to the very terms of his engagement and show the performance of all the conditions on his part necessary to put the other party in default. By his own failure to perform, the vendor lost his right of action at law and could convey none to his assignee.
    3. Same—Vendor—Right to maintain action for specific performance.
    If the vendor had sued in equity for a performance of the contract, Qucere, whether the court would not have enforced performance as to the principal subject matter, allowing a money compensation for the altered condition of the buildings caused by the removal of the fixtures.
    4. Same—Fixtures—Vendor and vendee.
    The general rule that whatever is once annexed to the freehold becomes parcel thereof and passes with the conveyence of the estate, however modified between landlord and tenant, remains in full force as between vendor and vendee. ,
    This is an appeal from a judgment of the general term of the supreme court, in the first department, affirming a judgment of the special term in favor of the defendant. The compliant shows that on ■ the 6th of June, 1878, one Trask and the defendant, entered into an agreement in writing, bearing that date, and under seal, by which Trask agreed to sell to the defendant certain property described as “ the stores and premises known as Ho. 39 South William street and No. 29 Stone street, in the city of New York,” for the sum of $30,000, and convey the same “free from all incumbrances by deed, containing a general warranty and the usual covenants; that Trask was ready to perform on his part, and at the proper time and place “tendered to the defendant a sufficient deed of the said premises and demanded ” fulfillment by him; that Trask sustained damages by reason thereof to the amount of $25,000; that he assigned his claim therefor to the plaintiff, and he asks judgment accordingly.
    ■ The answer of the defendant admits the agreement as stated; denies all other allegations in the complaint, and among others, sets up as a separate and distinct defense that on the 1st of June and just before the making of the agreement, Trask in order to induce this defendant to purchase said premises, and to make the said agreement, and with the pre-conceived intent and design to deceive and cheat and defraud this defendant, falsely and fraudulently stated and represented to this defendant that the stores and all the fixtures therein belonged to him, said Trask; that the same could be rented immediately to a tenant or tenants; that all the partitions and store fixtures in said building and premises, and the divisions therein contained, and all the. fixtures, gas-pipes, water-pipes, wash-basins, sinks, water-closets, sash-doors, sash-partitions and other partitions, gas-fixtures and all plumbing work, materials and fixtures, and the offices, and matters and things aforesaid, on the various, floors in said building, and in the stores thereof, all of' which was then there, and on said floors and in said buiding, and was seen and observed by this defendant, belonged to him, said Trask, and that he, said Trask, was the owner and holder and proprietor thereof, and he, said Trask, would sell them to this defendant along with the fee of said premises, and that they were a part and parcel thereof, and not otherwise; and that he, said Trask, would sell and deliver the said stores and premises aforesaid, in the state and condition in which this defendant then saw them, and that they would be ready ’or immediate renting to tenants;: that the defendant relied upon these representations and. entered into the agreement; that in fact the articles and fixtures so referred to were not the property of Trask, and he could not deliver possession thereof in the state and condition that they then were, so that this defendant could have the immediate use and possession thereof, and rent the same to tenants, as he well knew, that they belonged to a lessee of the premises, whose lease was not recorded and of which the defendant was ignorant, and the said fixtures were removed by the lessee between the making of the agreement and the day fixed for its consummation, so that. the condition of the premises was changed and they were not as suitable for use as when the agreement was made, and Trask could not convey the stores to him in the condition in which they were when bargained for, and so he failed to comply with his agreement, although the defendant was ready to do so on his part.
    Upon the trial evidence was given as to these matters, and at its close the defendant moved the trial judge to direct a verdict for him upon the ground “that the plaintiff or his assignor had failed to prove his ability to give the defendant the possession óf the property he contracted to sell and deliver in his contract,” and on the additional, ground “that Mr. Trask represented to the defendants that these fixtures went with the premises.” The plaintiff asked to go to the jury on the questions, “First, whether there was any bad faith on the part of Mr. Trask in respect to these fixtures, and, second, as to the credibility of the witnesses of the defendant on the subject of any representations alleged to have been made by him concerning these fixtures being or not being a part of the premises that were to be sold under the contract.” The plaintiff’s motion was denied and the defendant’s granted. After judgment, upon appeal to the general term it was affirmed, and the plaintiff appeals to this court.
    
      Mr. Johnston, for app’lt; Mr. Langbein, for resp’t.
    
      
       Affirming 30 Hun, 89, mem.
      
    
   Danforth, J.

It cannot be doubted that the articles in question formed part of the freehold and in the absence of anything to indicate a contrary intention were as between vendor and purchaser, such fixtures as would pass “by a contract of sale and conveyance of the stores and premises,” but they were put in by a tenant and the contention is that as between his landlord and himself he would have a right to remove them. That proposition, however, does not seem material to the present inquiry. It is a general rule that whatever is once annexed to the freehold becomes parcel thereof and passes with the conveyance of the estate, and this rule, however modifiéd between landlord and tenant, remains in full force as between vendor and vendee. The agreement to sell in this case contained no reservation, the property was to be free from incumbrance and no meaning or intent of the parties can be discovered from it or from any circumstance in evidence other than a general purpose that the vendee should have, as part of the realty, every article which would be comprehended under the the general rule to which I have referred. , They consisted, in fact, of gas piping, partitions, lead pipe, plumbing work, water closet and basins, one in the front office and one on the' store floor.

The closet and basins were connected by lead pipes, and all formed part of the building when, in considering the possibility of purchase, the premises were inspected by the intending vendee, nor was any removal begun or attempted until after the execution of the agreement. The partitions were of plank, tongued, grooved and beaded; they ran from “the floor to the ceiling” the whole length of the building, and these were again divided by partitions so as to make four offices, two on each street. They were in the loft and on the first and second floor, and were nailed to the ceiling, and “were up fast.” Just before the deed was to be executed under the contract, these articles were removed by the tenant, who had in fact put them in. The lead pipe was cut off close to the sidewalk, the water closet, basins and partitions taken down and carried away. On account of the changes thus made in the building the defendant refused to take the premises. The vendor Trask offered to make compensation in money,, but this was refused.

If the vendor had sued in equity for a performance of the contract, it is not improbable he would have succeeded, for it seems apparent that compensation might have been made in money for the altered condition of the buildings caused by the removal of the fixtures. There might be inconvenience and delay arising from the dismantling of the stores, but not beyond the power of money to relieve, and in such a case a court of equity is not prevented from enforcing performance as to the principal subject matter. Some such case is put by the court in Richardson v. Smith (5 Ch. Ap. Cas., L. R., 654), and it was held that the value of certain undeliverable articles might be deducted from the price agreed to be paid for the whole property. That exception related to furniture, and although in this case there is a difference growing out of the character of the articles, which as fixtures might under certain circumstances be deemed essential to the enjoyment of the principal thing (Darbey v. Whitaker, 4 Drew., 134; Jackson v. Jackson, 1 Smale & G., 184), they are not necessarily so here.

The vendor having two remedies, one damages and the other performance, chose the former. His right, if any, to damages, he assigned to the plaintiff and the plaintiff has sued. In such an action the vendor must be held strictly to the very terms of his engagement and show the performanee of all the conditions on his part necessary to be performed to put the other party in default. In the present instance the defendant was entitled to the stores in the condition in which they were when bargained for, and his refusal to take them in an altered and inferior condition was not a breach of his contract. By his own failure to perform, therefore, the vendor lost his right of action,at law and could convey none to his assignee.

No other question raised by the appellant becomes important, and the view taken of the case by the general term (30 Hun, 89), and in which we concur, renders it unnecessary to discuss the various exceptions upon evidence, because however decided, the result of the principal contention would be the same.

The judgment appealed from should be affirmed.

All concur, except Huger, Oh. J., not voting.  