
    Le Roy Riddell, Resp’t, v. Peter Cornell, App’lt
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    
    Ejectment—Agreement as to purchase oe land.
    In an action of ejectment to recover the possession of about five acres of land on which there was a stone quarry, held by defendant under a parol contract of sale made by one R., since deceased, for himself and plaintiff, as copartners, the referee found that the contract was made, but for what price did not appear, and therefore it was unnecessary for him to find the state of the accounts between the parties, hence that “the defendant has not paid the sum to be paid by said parol contract of sale.” The plaintiff testified that G-. told defendant he could have the five acres for $300 and he said he would take it. Defendant alleged in his answer that the price was $300 to be paid in stone, which latter fact he proved by numerous-witnesses. Held, that the finding was against the weight of the evidence.
    
      Appeal from a judgment entered in Steuben county upon the report of a referee.
    
      Eli Soule, for app’lt; A. M. Burrell, for resp’t.
   Haight, J.

This action is in ejectment to recover the possession of real property from the defendant. The premises in question consists of about five acres of land on which there was a stone quarry. It formerly constituted part of a farm of which one George Eiddell held a contract of purchase from the then owners. George Eiddell and the plaintiff were co-partners, doing business under the name and style of George Eiddell & Co. The contract for the purchase of the farm was taken in the name of George for the benefit of the firm, and the purchase money therefor was paid by the firm. Subsequently George Eiddell assigned his interest in the contract to the plaintiff, and thereupon the premises were conveyed to him in accordance with the provisions of the contract. The referee has found as facts: “That the said George Eiddell, while he held said contract of. purchase for himsblf and for said firm, and with the approval of the plaintiff, made a parol contract with the defendant by which he agreed to sell to the defendant, and the defendant agreed to purchase the lands described in the complaint, but for what price does not appear, and is not shown by the evidence given on the trial of this action. Hence I find that the defendant has not paid the sum to be paid by said parol contract of sale to him. That defendant since said parol contract of sale to him was made, and at the time of the commencement of this action, was in possession of said premises under the same, and by the consent, license and authority of said George Eiddell and this plaintiff.” The 8 defendant requested the referee to find as a fact that George Eiddell agreed to sell the land described in the complaint to the defendant for three hundred dollars.” This request was refused by the referee, and to such refusal, and to the finding as made on that subject, exceptions were duly taken. It appears to us that these exceptions were well taken ; that the request was in accordance with the conceded facts in the case, and should have been found, and that the finding that it does not appear, and is not shown by the evidence given upon the trial, what price was to be paid for the land, is against the evidence.

The plaintiff himself testified upon his direct examination that “ in March, 1874, the defendant came to the drug store and said he wanted to buy the stone quarry ; George talked with him and told him he would let him have it for three hundred dollars. Defendant said he did not want a written contract, that he had debts. George told him he would let him have the five acres for three hundred dollars, he to pay interest on it till paid for. Defendant said he would take it. That is the same land described in the complaint.”

The testimony of the plaintiff as to the contract is the same as that alleged in the defendant’s answer with the exception that he alleges that the three hundred dollars was to be paid in stone.

The defendant was not permitted to testify as to the conversation had with George Riddell because of his death. He, however, showed by a number of witnesses the declaration of George to the effect that he had sold the defendant the quarry lot, and that he was to receive his pay therefor in stone; that the payment in stone was part of the agreement has been found by the referee.

The referee in his opinion refers to the testimony so given by the plaintiff, and states that “ a contract price nowhere appears except in the testimony of the plaintiff, and it there appears as a price to be paid for three acres of the quarry, while the declarations of George Riddell relate to five acres, and it was five acres that he reserved as having been sold to the defendant. Then the defendant had the possession and worked the five acres, and by directions of George Riddell the five acres were assessed to the defendant, and he paid the taxes on the live acres and fenced it. Then the defendant denies that any such conversation as the plaintiff testified to took place.’’ The referee has mistaken the evidence in this regard. rJ?he plaintiff nowhere speaks of three acres, but, instead thereof, he said he would let him have the five acres for three hundred dollars, and that it was the same land described in the complaint. The defendant did not deny that any such conversation as testified to "by the plaintiff ever took place. They differed, it is true, as to the question whether the three hundred dollars was to be paid in stone or not. The plaintiff had testified that the conversation took place at the drug store. The defendant, when asked to state whether he made the bargain “at the place stated,” answered that no such conversation took place at the store.

We do not understand that he denied that he had a conversation with George in which George agreed to sell him.the stone quarry lot consisting of five acres, and that he was to pay therefor three hundred dollars, for such was the conversation as he has alleged it in his answer. The referee further states in his opinion that he is unable to see how it could be found from the evidence what was the contract price to be paid by the defendant for the-quarry, and consequently it is not necessary for him to make a finding as to the state of the accounts between the parties. Of course if the amount that was to1 be paid for the land could not be ascertained, then it would not be necessary to ascertain the state of the accounts, but if, as we have shown, the contract price was three hundred dollars, then the state of the accounts becomes material as bearing upon the. question whether the plaintiff has been paid in full for the land or any part thereof. The question of payment was the main one litigated upon the trial. Much evidence was taken as bearing upon that issue and it should have been determined.

The judgment reversed and a new trial ordered, costs to abide the event.

Dwight, P. J., Lewis and Macomber, JJ., concur.  