
    Jesse C. Hoover, Appellant, v. Lucius Woodruff, Respondent.
    Third Department,
    November 22, 1912.
    Vendor and purchaser — action to recover money paid under oral contract to convey lands — evidence—improper nonsuit.
    Plaintiff, claiming that defendant refused to convey certain lands pursuant to the terms of an oral contract, brought an action to recover moneys claimed to have been paid through his agent upon the contract. Evidence examined, and held, that a nonsuit was improper.
    Betts, J., dissented.
    
      Appeal by the plaintiff, Jesse C. Hoover, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 26th day of August, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Broome Trial Term, and also from an order entered in said clerk’s office on the 3d day of Hay, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Albert S. Barnes and Archibald Howard [Hinman, Howard & Kattell of counsel], for the appellant.
    
      Sperry & Wickham [Robert S. Wickham of counsel], for the respondent.
   Per Curiam:

This action was brought to recover the sum of $1,000, which the plaintiff as the undisclosed principal claimed to have paid through his agent to the defendant upon an oral contract for the purchase of a parcel of land situated on the easterly side of upper State street in the city of Binghamton. ' At the time of making this oral contract said parcel of land was owned by S. M. Baird, and fronted on Merrill avenue and State street and ran easterly to lands of the Delaware, Lackawanna and Western Bailroad Company. Westerly between the Baird lot and Chenango street was a tract of land in process of development owned by the defendant and one Merithew, known as Chenango Heights, which had been subdivided into lots with streets running through it, the title to which lots and streets was in the defendant and said Merithew, and two of which were said Merrill avenue and State street.

The claim of the plaintiff was to the effect that in the month of December, 1907, the plaintiff, through his duly authorized agents and the defendant, entered into an oral contract by which it was agreed that the defendant should purchase said Baird lot for the sum of $2,500 and should sell the same to the plaintiff upon contract for the sum of $2,700, $1,000 of which was to be paid down and the balance of $1,700 with interest on the 1st day of July, 1908, and that the" defendant should place Merrill avenue and the upper portion of State street upon the grade established by the city and should convey the same to the city for use as public streets in order that water mains might be laid through such streets to the Baird lot, which the city would not do until the streets had become public streets and had been placed on grade, and without which the Baird lot would be without necessary water supply either for the use of buildings to be erected thereon or for protection against fire; that pursuant to said oral contract the plaintiff’s representatives paid to the defendant $600 December 27, 1907, and the remaining $400 of the $1,000 payment January 6, 1908, at each of which times defendant gave a receipt for such payment, and at which latter time, in reply to the statement of plaintiff’s representative that the purchaser would expect a contract instead of a receipt, stated to plaintiff’s representa, tive that he would prepare a contract in a day or two; that on or about the 10th day of January, 1908, defendant’s attorney, Judge Ohnstead, prepared and submitted to plaintiff’s representatives a contract for the Baird lot which provided for the payment of the balance of $1,700 Hay first; for the delivery of a covenant against grantor deed; for the delivery of a deed to the city of said streets, which contract, however, contained the provision, “ but it is expressly understood and agreed between the parties hereto that the said parties of the first part, do not by this covenant obligate themselves to grade or improve the streets above named,” without which grading having first been done the city would refuse to accept a conveyance of said streets; and said contract proposed by the defendant contained the further clause: “And as a further consideration of such conveyance the party of the second part for himself, his heirs and assigns doth covenant and agree with the parties of the first part, their heirs and assigns, that upon the lands hereby conveyed or any part thereof, the party of the second part, his heirs or assigns, shall not at any time within the next forty years establish, maintain, carry on or conduct or permit to be established, maintained, carried on or conducted any business undertaking or manufacturing which shall be dangerous, injurious, obnoxious, detrimental, unhealthy or offensive to the owners or occupants of lots laying within that part of the neighborhood known as the Collier Location, and that this covenant runs with the land hereby conveyed and is binding upon all future owners, occupants and tenants thereof, and that the above defined covenant shall be thus contained in said deed.” Plaintiff’s representative declined to accept said contract upon the ground that it did not comply with said oral contract in that it required payment of the balance of $1,700 May first instead of July first, that it did not obligate defendant to place said streets on grade, and that it contained a forty years’ covenant against alleged nuisances. Plaintiff’s representative then prepared and submitted to defendant’s said attorney a proposed contract. On January 24, 1908, the defendant received a conveyance of the Baird lot and on the same day tendered a deed thereof to Edward H. Johnson, who he claimed was acting for the undisclosed principal, and demanded the payment of $1,700. On or about February 6, 1908, plaintiff’s representative called upon the defendant, and, stating that he represented the plaintiff, who was the undisclosed principal, demanded that defendant execute a contract with plaintiff for the Baird lot and put the streets on grade or procure their acceptance by the city, to which defendant replied, I will do nothing further or different than I have already done in the contract which was prepared as referred to by Judge Olmstead.” ■ Thereupon plaintiff’s representative demanded of defendant that he return the $1,000 so paid him, as the plaintiff was entitled to performance on" defendant’s part of the contract or was entitled to his money, to which defendant replied that he would do nothing further in the matter. This action was commenced March 27, 1908. The testimony of plaintiff and his witnesses was to the effect that the oral contract and the transactions hereinbefore stated were as so claimed by . the plaintiff, and standing uncontradicted must, for the purpose of determining the correctness of the ruling granting a nonsuit, be considered established and the plaintiff as entitled as matter of law, upon this appeal^ to the most favorable construction which can fairly be given to the evidence. Judged by this rule the plaintiff was at least entitled to have submitted to the jury the question as to whether the defendant was not alone in default in carrying out the oral contract under which the $1,000 had been paid to him, and, hence, the plaintiff entitled to recover the same from the defendant.

The judgment entered upon the nonsuit must, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred, except Betts, J., dissenting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  