
    Listman v. Hickey.
    
      (Supreme Court, General Term, First Department.
    
    June 29, 1892.)
    1. Pleading—Amendment on Appeal.
    Where evidence, which might have been excluded as not within the pleadings, was admitted without objection, the pleadings may, on appeal, he made to conform to the proof in order to support the judgment.
    2. Vendor and Vendee—Injury to Premises before Conveyance.
    Where premises agreed to he conveyed are damaged by fire between the date of the contract and the time fixed for delivery of the deed, the vendee may refuse to accept the same, and may recover the amount paid by him to the vendor on the contract, where the vendor does not ask for specific performance of the contract, after making compensation to the vendee for the injury to the premises.
    Appeal from circuit court, New York county.
    Action by Cunigunda Listman against John Hickey to recover the amount paid on an agreement to convey real and personal property, and counsel fees- and disbursements expended by plaintiff in examining title thereto. From a judgment entered on a verdict directed for plaintiff, and from an order denying his motion for a new trial, defendant appeals.
    Affirmed.
    Argued before Van Brunt, P. J., and O’Brien and Patterson, JJ.
    
      S. H. Stuart, for appellant. S. D. Levy, for respondent.
   Van Brunt, P. J.

This action was brought to recover the amount which had been paid on an agreement to convey certain premises in the city of New York, and the counsel fees and disbursements incurred by the plaintiff in the examination of the title of the premises. Upon the trial it appeared that on the 5th of December, 1889, the plaintiff and defendant entered into an agreement in writing whereby the defendant agreed to sell to the plaintiff the premises in question, together with certain personal property therein. One thousand dollars was to be paid upon the execution of the contract, and the balance to be paid as provided in the agreement. The defendant agreed to execute and deliver the usual warranty deed on or before the 3d of January, 1890, upon receiving «payment of the balance, and the plaintiff had the privilege of taking title on the 20th of December, 1889. On the 31st of December or the 1st of January, 1890, the premises were damaged by fire and water to the amount of about $2,000 or $3,000. On the 3d of January, 1890, the plaintiff refused to take the title, various objections being raised. Nothing, however, was said about the fire. Thereupon the plaintiff brought this action, alleging the agreement, and that the defendant on the 3d of January, 1890, failed and neglected and refused to give to the plaintiff a deed conveying the said premises pursuant to the agreement; and that the plaintiff then informed the defendant that she elected to rescind and annul the agreement, and demanded the repayment to her of the sum paid and her expenses. The answer admitted the agreement, denied the refusal to convey, and asked for damages by reason of the failure of the plaintiff to take the premises as agreed upon. Upon the trial evidence was admitted, without objection, showing the damage of the premises by fire, and the loss of certain personal property upon the premises which was included in the agreement. The court thereupon directed a verdict in favor of the plaintiff, and from the judgment thereupon entered this appeal is taken.

It is claimed upon the part of the appellant that, the objection in reference to the fire not having been raised as a ground for rejecting the title, it could not be availed of upon the trial. Under the pleadings, if the evidence in respect to the fire had been objected to, it may possibly be that it could not have been admitted. But this evidence having been admitted without any objection as to its admissibility under the pleadings, they may, upon this appeal, be made to conform.to the proof in order to support the judgment.

But it is further claimed that the happening of the fire afforded no ground for the refusal of the plaintiff to accept the deed, or for the rescission and annulment of the contract by her; and that the fact that a building contracted to be sold is damaged, or even destroyed, by fire, between the time of the execution of the contract and the time fixed for the delivery of the deed, is no defense to an action for the purchase money, and, per contra, no ground for a rescission of the contract, or the repayment of the amount paid upon the execution thereof. Certain authorities are cited to support this proposition, but we fail to find that they bear out the contention. In fact, the case of Goldman v. Rosenberg, 116 N. Y. 85, 22 N. Y. Rep. 259, seems to establish the contrary proposition. And in the case of Smyth v. Sturges, 108 N. Y. 502, 15 N. E. Rep. 554, as correctly stated by the court below, it was held that, under a contract similar to the one at bar, the defendant was entitled to the premises in the condition in which they were bargained for, and his refusal to take them in an altered and inferior condition was not a breach of the contract. It might very well be that an action in equity for the performance of the contract might have been maintained, compensation being made to the plaintiff for the damage to the premises and property in question. But no such relief was asked for upon the part of the defendant. He insisted that he had duly performed all the conditions in the agreement, and that the plaintiff had failed to comply with the conditions and terms of the contract upon her part, and damages were claimed by reason of the failure of the plaintiff to take her title. Therefore the parties put themselves strictly upon their legal rights; and, under such circumstances, it is clear that the only judgment which could be granted was that which was directed by the court below. The judgment and order1 should be affirmed, with costs.

O’Brien, J., concurs.

Patterson, J.

I concur in the result, for the reason that the contract contemplated the purchase and sale of both real and personal property. Had land and the buildings on it alone been the subject of the contract, a different conclusion might have been reached. As is said in Clinton v. Insurance Co., 45 N. Y. 465, “the general rule is that the vendee in a contract for the sale of land is entitled to any benefits and improvements happening to the land after the date of the contract, and must bear any losses by fire or otherwise which occur without the fault of the vendor. Dart, Vend. 116; 1 Sugd. Vend. 468; Paine v. Meller, 6 Ves. 349.” But where land and personal property are both the subject of the contract, the agreement is entire, and, the personal property being destroyed, the vendor cannot perform, and, as the vendee cannot get what he contracted for, he is not liable for the price in an action at law, and is entitled to recover back what he paid.  