
    William G. Jughardt, as Administrator, etc., of Johanna H. Elizabeth Jughardt, Deceased, Appellant, v. William H. Reynolds, Respondent.
    
      Contract for the sale of a house — a promise that if the vendee would perfoim, the vendor would malee the cellar watertight is without consideration.
    
    A written contract for the sale of a dwelling house in process of construction contained no provision upon the subject of a watertight cellar, but provided that such house “should be finished equal, if not superior, to a certain pattern house," and at the time fixed for the passing of the title the vendee notified the vendor that the cellar of the house was not watertight, and that he would hot take the title until it was made so.
    
      Held, that a promise made by the vendor, without any new consideration moving to him, that if the vendee would accept the title he would make the cellar watertight, was unenforcible, as the performance of an act which a party is under legal obligation to perform does not constitute a consideration for á new contract.
    Appeal by the plaintiff, William G. Jughardt, as administrator, etc., of Johanna H. Elizabeth Jughardt, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 25th day of January, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 31st day of January, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      George W. Wingate, for the appellant.
    
      8. 8. Whitehouse, for the respondent.
   Goodrich, P. J.:

The complaint alleges the following facts : A contract was made between William G. Jughardt and the defendant, whereby the defendant agreed to sell and Jughardt to buy the premises, 317 Sterling place, Brooklyn, for $11,000, “in and by which agreement said defendant agreed that the brownstone dwelling which he, said defendant, was then building on said premises, should be finished equal, if not superior, to a certain pattern house.’’ Thereafter Jughardt “ decided to have the deed * * * taken in the name of * * * his wife,” to which the defendant agreed. The title was to be closed October 30, 1897. Prior to that date water ran into the cellar after ¿very rain, of which fact Jughardt notified the defendant and informed .him that the building was not what the defendant had agreed to construct, and that the deed would not 'be accepted until the cellar was made water tight, and the defendant further agreed that if the purchase price was paid and the deed accepted by Mrs. Jughardt he “ would guarantee that if any water got into the cellar thereafter he would attend to and fix it, and that he, said defendant, would guarantee to said Johanna H. Elizabeth Jughardt a perfectly dry cellar.” In reliance.upon this promise, Mrs. Jughardt paid the purchase money and took the deed. Since the delivery water continued to come into the cellar after every rain, and the defendant, being informed thereof, promised to perform his contract to keep the water out of the cellar, and has bailed the water out and put cement on the walls and in the rear yard, but has failed to exclude the water. By reason of such failure the premises have become wet and unwholesome. Mrs. Jughardt sp¿nt $100 in endeavoring to prevent water coming into th¿ cellar, and sustained-damages in the sum of $3,000. Mrs. Jughardt having died, the plaintiff was appointed administrator of her estate. As an individual he assigned to himself as administrator whatever claims he had arising out of the premises. . The prayer was for judgment for $3,000. '

The defendant denied that “ in reliance upon this promise ” (that if water got into the cellar he would fix it and would guarantee a perfectly dry cellar) “ by said defendant, the purchase price stated in said contract was paid to him.” He admitted that he had done some extra work and had cemented the wall and yard.

At the trial both parties moved for the direction of a verdict, and the court directed a -verdict for the defendant. This requires only an examination of the record in order to ascertain whether there is evidence sufficient to sustain the facts and inferences necessary to .support the judgment. (Hull v. Cronk, 55 App. Div. 83.)

The . defendant submitted a “ proposed decision ” containing a clause that the promise of the defendant alleged by the plaintiff To have been made at the time of taking the title was without consideration and void, and that it was, “ therefore, unnecessary to determine the dispute between, the defendant and the plaintiff as to whether such promise was made or any other questions of fact in the case.” The court tiled a memorandum as follows: “ I cannot change the minutes to this extent. Both sides moved for a direction of a verdict, and the minutes must show that I found that there was no evidence, or, indeed, claim, that the original contract was not complied with. There was no claim or dispute on that head, and the oral agreement was without consideration.”

. The plaintiff appeals from, the judgment and order denying a new trial.

The plaintiff, as administrator, took nothing by the assignment from himself as an individual to the plaintiff as administrator. He had no cause of action. We must, therefore, examine the record to ascertain simply whether Mrs. Jughardt had any cause of action which survived to her estate.

There was evidence to support the finding that the defendant made an oral promise to Mrs. Jughardt and to her husband that he would guarantee.to her a perfectly dry cellar, and the learned court evidently came to that conclusion. But he also found that" this oral agreement was without consideration. In this conclusion I think he was correct. The original written contract contained no provision upon the subject, except that the house would be equal to, if not superior to, a pattern house. The promise upon which the plaintiff relies was made after the signing of the contract by which the liability of the defendant was created anil at the time of passing the title. Mrs. Jughardt had no other valid contract with the defendant. He was bound to take the title in accordance with the contract of sale, and any promise which the defendant made to him to guarantee a water tight cellar was without any new consideration proceeding from him. The performance of an act which the party is under legal obligation to perform cannot constitute a consideration for a new contract. (Vanderbilt v. Schreyer, 91 N. Y. 392; Robinson v. Jewett, 116 id. 40.)

Mr. Jughardt testified that when the original contract was executed he told the defendant that he wanted to put the house in his wife’s name, that he then paid $250 on account of the contract and that'when the title was closed he paid $1,000, the remainder of the cash payment named in ’the contract, and the deed was executed to the wife," she executing the mortgage for the remainder of the consideration expressed in the contract.

I find no evidence of- any new promisé made to Mrs:- Jughardt. Hr. Jughardt testified that the new promise was made to :him. He nowhere testifies to any promise made to his wife. Even at the closing of the-title he said: “ Before-1 allowed my wife to sign, the papers I asked Hr. Reynolds the same question over again, if lie. would guarantée me a dry cellar, and he repeated the same thing ■ over- again that he had promised me in Sterling Place, that he would guarantee me a perfectly dry cellar -* * * I told my wife she- could sign the purchase papers and I paid my own money.” When ■ Hr. Jughardt directed the conveyance to his wife, lie neither received from or gave to her or the defendant any com sideration therefor or- for any new promise by the defendant to 1 make a water tight cellar, and when Hrs. Jughardt took the deed and-executed the mortgage she gave the defendant ho new consideration therefor and did not agree to do anything' other,;thí¡m what her husband was bound to-do and what she was bound -fo^b)1)by steppingdnto his place under the contract. The purchase money was the consideration and the only consideration which the defendant had agreed to accept as the consideration for the transfer of the title, and this is all that he received from either lmsband or wife. The husband could not transfer to the wife a right which he did not possess, and as he was bound to carry out the contract, he gave no new consideration for any new promisé and had no right, to enforce it. On the other hand, it is not in evidence that the defendant made any promise to Hrs. Jughardt, or that she gave the defendant.; any new consideration for his alleged promise other than that,.provided for in the original contract, that is, a mortgage for the Unpaid purchase money. The alleged promise was, therefore, without any consideration and cannot be enforced. . ;

The judgment and order should be affirmed, with posts. .

All concurred* Bartlett, J., in a memorandum in which Woodward, J., concurred. —-

Willard Bartlett, J,

(concurring):

The appellant seeks to spell out a ■ consideration for the oral contract of guaranty upon the ground that the plaintiff, before and at the; date fixed for closing the title, refused to allow his wife to complete the purchase because the original contract had not been complied with, and contends that the defendant procured him to consent to the completion of the purchase by agreeing to guarantee a dry cellar.

There would be much force in this proposition were it not that the plaintiff joined with the defendant in asking the court to direct a verdict, thereby leaving to the trial judge the determination of whatever controverted questions of fact there might be in the case. One of these questions was, whether any controversy actually did arise between the plaintiff and the defendant as to the fulfillment of the original contract. It appears by the decision of the learned trial judge that he decided this question adversely to the plaintiff. In refusing to alter the minutes, as requested by the plaintiff, after declaring that there was no evidence, or, indeed, claim that the original contract was not complied with, the learned judge said: “ There was no claim or dispute on that head.” In view of this determination I think the judgment must be affirmed.

"Woodward, J., concurred.

Judgment- and order affirmed, with costs.  