
    Ferdinand H. Duckwitz, Appellant, v. Adaline H. Fuller, Respondent.
    
      Contract to sha/re in the pi'oceeds of sale of premises to he acquired under another contract for their purchase — both contracts construed together.
    
    An action was brought upon a contract, which recited that certain premises, to a conveyance of which the defendant was entitled on October 1, 1892, under a contract with one Beitz, were to be disposed of to the best advantage, and that the plaintiff was to have a portion of the excess of the purchase price realized therefrom, and provided that the premises should be sold by the. defendant for the best price that could be obtained, and that, after paying the purchase price mentioned in the Beitz contract held by her, one-third of the excess up to the sum of $1,500 should be paid to the plaintiff, and in case a greater sum than $275 per acre should be realized, one-half of all the excess above $2.75 should be paid to the plaintiff, and that in case a sale should not be made before October 1, 1892, a mortgage should be given by the defendant to the plaintiff (when the Beitz deed was given to the defendant) to secure the above-mentioned payments.
    The contract with Beitz, which the defendant held, provided that the cash payment thereon was to be made on or before October 1,. 1892, when a deed was to be delivered and the balance of the purchase price was to be secured by a bond and mortgage on the premises.
    By the complaint it appeared that the defendant had not received a deed from Beitz, and had not sold the premises prior to October 1, 1892, and it did not appear that the defendant had sold them subsequent to that date.
    
      Held, that inasmuch as the two contracts apparently were made on the same day and related to the same subject-matter, it was proper to refer to both in giving a construction to either of them;
    That it did not appear that the condition, mentioned in the contract of the defendant with the plaintiff, was broken, as the defendant’s obligation to give a mortgage to the plaintiff was conditional upon the defendant’s taking a deed from Beitz and had never matured according to the tenor of the stipulation with the. plaintiff;
    That there was nothing in the contract to deprive the defendant of a discretion, if reasonably exercised, in respect to her acceptance of any offers the defendant might have for the premises.
    Appeal by the plaintiff, Ferdinand H. Duckwitz, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡Niagara on the 10th day of January, 1896, upon a dismissal of the complaint directed by the court after a. trial at a Trial Term thereof before the court without a jury.
    
      The court found as conclusion of law as follows:
    “ That the motion of the defendant to dismiss the complaint of the plaintiff herein upon the pleadings herein should he granted, and that judgment should be entered herein in favor of the defendant and against the plaintiff dismissing the complaint of the plaintiff herein upon the pleadings, with costs.”
    Thereafter the judgment was entered from which the plaintiff appeals. ¡No part of the evidence is inserted in the return, the decision being based on the pleadings only, and no exception appears in the appeal book taken upon the trial or to the decision made by the trial court.
    The complaint in this action set forth two contracts, more particularly referred to in the following opinion, and alleged that the defendant did not sell the land referred to in said contract, prior to the 1st day of October, 1892, and never delivered to the plaintiff the mortgage thereon, referred to in the contract; that “on and prior to the 1st day of October, 1892, the defendant was offered and could have received, had she so chosen, the sum of $290 per acre in money and securities for all of said land ; that on and since said 1st day of 'October,- 1892, * * * said land was worth and should have been sold for $290 per acre;” that the defendant had failed to fulfill her contract for the purchase of the land, and had never acquired a title thereto from the. owner which would enable her to sell and convey a marketable title thereto; that by reason of defendant’s failure to deliver to said plaintiff said mortgage, and to perform said contract, the plaintiff had suffered damages in the sum of $1,875, with interest thereon from October 1, 1892, for which he demanded judgment.
    
      Wallace Thayer, for the appellant.
    Root, Orton, Baldwin & Baldwin, for the respondent.
   Hardin, P. J.:

Inasmuch as no exception appears .in the appeal book the appellant is not in a situation to review any ruling made during the trial, or the decision made by the trial court.

By the plaintiff’s complaint it appears that one Frederika Beitz, on the 19th of Hay, 1892, entered into a contract with the defendant Fuller whereby she, in consideration of $500 and of certain other considerations mentioned in .the contract, agreed to sell to the defendant Fuller a tract of land in the town of Wheatfield containing fifty acres of land, be the same more or less, which was described, (reserving out of the parcel described the lands owned by the Hew York Central and Hudson River Railroad Company), at the sum of $170 per acre, aggregating $8,500. A survey was to be made and the amount of land Was to be computed, and the payment therefor was to be made, viz., $500 down, $2,500 on or before the 1st of October, 1892, and the balance by executing a bond and. mortgage bearing date the 1st of October, 1892, payable five years from date with interest. The contract further provided that the second party was to deliver to the first party, with the bond, a mortgage with the same conditions as the bond, with “ a clause requiring the party of the first part, upon request of the party of the second part, * * •* to release from the lien of said mortgage any part or portion of the within described premises (excepting the premises fronting on Sawyer Creek Road upon which the buildings stand) upon the payment to said parties of the first part of the sum of and the rate of $300 per acre.” The contract further provided that Beitz, on receiving $2,500 on or before the 1st of October, 1892, should execute and deliver to the party of the second part a good and sufficient warranty deed- of conveyance, executed by herself and her husband, Wilhelm Beitz. The second party had the privilege of paying the $2,500 prior to October 1, 1892, and in that event the first parties were to deliver a deed and receive the bond and mortgage payable five years from October 1, 1892.

On the 19th day of Hay, 1892 (upon the same day that the defendant entered into the contract with Beitz) she entered into a contract with the plaintiff, reciting and referring to the contract made with Beitz, and also reciting, viz.: “ It is understood between the parties hereto that the said premises are to be disposed of to the best advantage, and that the said Ferdinand H. Duckwitz is to have from the excess realized therefor, above said purchase price of $170 per acre, the next thirty (30) dollars per acre, and that if the said premises shall realize more than tWo hundred seventy-five (275) dollars per acre, he shall also have one-half the excess realized above two hundred seventy-five (275) dollars per acre for the consideration hereinafter recited.”

The contract further provided, that in consideration of one dollar, and the execution and delivery of the said land contract by the said Fredericka Beitz to the said Fuller, a copy of which is hereto annexed and made a part of this agreement; and in consideration of the consent of said Duckwitz to the said contract, and to the said conveyance to the said Fuller; * * * and in consideration of the release by said Duckwitz of all claim and interest in and to the premises in said annexed agreement described excepting under this agreement: it is mutually agreed that the said premises shall be sold by the said Fuller for the best price and terms that can be obtained therefor. And that after payment for said land, as by said contract with Beitz provided, including reimbursement to said Fuller from the proceeds thereof of the sum of three thousand dollars ($3,000) required to be paid on said Beitz contract prior to the delivery of the deed, that from the excess of cash received over such payment, said Fuller shall pay to the said Duckwitz a one-third part of all such excess, up to the sum of, and until said Duckwitz shall have received the sum of, fifteen hundred dollars ($1,500). That in addition thereto, if the said premises shall realize a sum greater than two hundred seventy-jive dollars ($275) per aere, said Fuller shall pay to the said Duckwitz one-half of all the excess received over and above said $275.00 per acre, to wit, one-half of all such excess in cash and securities, so that the same shall be equally divided, share and share alike, and each receive a like payment of the cash or securities received as the case may be.”

It was further provided that in case a sale of the premises should not be made before October 1, 1892, the defendant, on receiving the deed from Beitz should give a second mortgage to the plaintiff to secure the payments to be made to him when a sale should be made, and that the mortgage should be conditioned to pay the said sum of $1,500.00 in one year from the first day of October, 1892, or at such prior time as one-third the excess of the money realized on such sale applied as received towards payment of said $1,500.00 shall pay and satisfy the same, which mortgage shall likewise be conditioned that said Fuller shall pay to said Duckwitz the one-half of all moneys and securities or either, in excess of $275.00 per acre that shall be received on the sale of the premises when sold by said Fuller.”

Evidently the parties to this action when they entered into the contract from which the quotations have just been made, contemplated an appreciation of the property, and that a rising market would afford an opportunity for carrying out the speculation they were contemplating. The words in the contract that in case the sale' of the said premises shall not be made as hereby contemplated prior to - October first, 1892, and said Fuller shall take a deed from said Beitz, and give back her purchase-money mortgage, as by said Beitz contract provided,” evidently were used for the purpose of qualifying and creating a condition precedent to the agreement on the part of Fuller to give to Duckwitz, the plaintiff, a second mortgage to secure one-half of the contemplated profits of $3,000, to-wit, the sum of $1,500. The agreement to give the $1,500 mortgage was conditioned that Fuller should take a deed from Beitz, made so by the use of the words “ in case the sale of the said premises shall not be made * * * prior to October first, 1892, and said Fuller shall then take a deed from said Beitz.” It is not alleged and it does not appear from anything found in the appeal book, that Fuller took a deed prior or subsequent to the 1st of October, 1892. By the complaint it appears that the defendant did not sell the land prior to the 1st of October, 1892, and that she has never received a deed from Beitz. Her obligation, therefore, to give a mortgage to the plaintiff has never matured, according to the tenor of the stipulation with the plaintiff. It is not made apparent that the speculative option given to the plaintiff has matured, or that the condition mentioned in the contract of the defendant with the plaintiff was broken before the commencement of this action. Inasmuch as the two contracts apparently were made the same day and relate to the same subject-matter, it is proper to refer to both of them in giving construction to either of them. It is to be borne-in mind there was no absolute stipulation on the part of the defendant to sell the property at $290 per acre; nor is there anything in "the contract to deprive the defendant of a discretion in respect to any offers that she might have,, if reasonably exercised,, in respect to the purchase of the land. Hothing is found in the contract between thé defendant and the plaintiff obligating the defendant absolutely to fulfill her contract with Beitz. The construction and contention of the plaintiff ought not to prevail. The conclusion reached at the Trial Term seems to he more reasonable. The foregoing suggestions lead to an affirmance.

Folleto, J., and Adams, J., concurred; Green, J., not sitting; Ward, J., not voting.

Judgment affirmed, with costs.  