
    George J. Hoffman, Respondent, v. John E. Hoffman, Appellant.
    
      Contract — a provision “ in case of the failure of the consummation of the covenants ” thereof, construed.
    
    Two tenants in common, of certain property which had been devised to them, executed an agreement by which one of them agreed to convey to the other all his interest therein and in the estate of their devisor; and the other agreed to purchase such interests and to pay and liquidate all claims against the estate. The agreement concluded with the following clause : “In case of the failure of the consummation of the covenants herein contained by either party hereto, nothing herein contained shall be construed as a waiver of the right or interests of any of the parties hereto, as they have heretofore existed, before the execution of this agreement.”
    
      Held, that such clause had reference to a failure to fulfill the contract based upon matters extrinsic to the obligations created by the contract itself, and was not intended to make provision for a breach of the contract by one of the parties thereto or to authorize such a breach.
    Appeal by the defendant, John E. Hoffman, from an interlocntory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of March, 1900, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s amended demurrer to the complaint.
    The contract, for the specific performance of which the action was brought,-is as follows:
    
      “ This Agreement, made and entered into this 29th day of August, in the year one thousand eight hundred and ninety-eight. By and between George J. Hoffman and Clara Alma, his wife, of the City ' and County of New York, parties of the first part, and John E. Hoffman and Lena, his wife, of the same place, parties of the second part,
    
      Witnesseth: ■
    
    
      “ Whereas : Heretofore, and on, or about the first day of March, 1893, one. Nicolaus Martin (since deceased) made and' executed a certain indenture of "lease, for the term of fifteen years, of the house and premises No. 2906 Third Avenue, in the City of New York, to John E. Hoffman, one of the parties of the second part, for the sum of $300 annually, and which said lease is recorded in the office of the Register of the City and County of New York, in Liber 8, page 201 of Convey. Sec. 9, Block No. 2362, in the 3d day of March, 1893, and therein more full described and set forth, and
    “Whereas: Thereafter and in the month of August of the.same year, another lease, with substantially the same conditions, was executed by he said Nicolaus Martin to said Hoffman, but not recorded until the month of July, 1898, and
    “Whereas: The said Nicolaus Martin departed this life on or .about the 20th day of February, 1898, leaving a last will and testament, bearing date the 3d day of March, 1893, whereby he devised and' bequeathed to the aforesaid George J. Hoffman and John E. Hoffman parties hereto all his estate both real and personal of whatsoever kind and wheresoever situate, share and share alike ; said will being filed in the" office of the Surrogate of the County of New ■ York on the. 2d day of April, 1898, was thereafter duly probated on the 8th day of July, 1898, and the parties hereto appointed executors of said will on said day and duly qualified thereon, letters testamentary having been issued to the parties hereto, and for the purpose of a speedy settlement of the interests of the parties hereto:
    
      “Now: For and in consideration of these presents and the sum of Four Thousand ($4,000.00) Dollars, to be paid by the parties of the second part, as hereinafter more fully provided and set forth, it is covenanted and agreed by thé parties to these presents, as follows, to wit:
    
      “First. The said parties of the first part hereby. agree to. surrender, grant, assign, release and quitclaim, to the parties of the second part on a day to be hereafter mutually agreed and determined "upon between the parties hereto, not to exceed sixty days from the ■date of these presents, and upon a notice in writing to be given by the parties of the second part to the parties of' the first part or their attorney Mr. Max Bendit of at least five days of the time and place for closing title; all the right, title and interest in and to any and all property real or personal, and wheresoever the same may be situated, of the parties of the first part, under the demise and bequest, •contained in the will of the aforesaid Nicolaus Martin deceased, to which they are now entitled or may become entitled to, and to ■execute any and all instruments or documents to transfer and vest proper title to said property in the parties of the second part, and to surrender any and all instruments in their possession affecting the interest hereby intended to be transferred.
    “ Second. That any and all moneys now on deposit in any bank ór banks, belonging to said estate, or in the name of the parties hereto as executors, or any debts accrued or hereafter to accrue to the said estate, to be and remain the property of the parties of the second part and said parties of the second part hereby agree to pay and liquidate all claims as against said estate, and to release said parties of the first part from any liability therefore, as may have heretofore existed.
    
      “ Third. Any monies now due or hereafter to become due for professional services rendered by the attorneys for the respective parties hereto, to be paid by each of them individually, that is to say, each to pay their own respective attorneys.
    
      “ Fourth. The said parties of the second part also agree to assume the payment of a certain chattel mortgage made by the said Nicolaus Martin and held by Messrs. J. & M, Haffen upon the goods and chattels in the store and premises, described in the lease heretofore mentioned, and all monies accrued or to become due thereunder.
    
      “Fifth. The said parties of the second part hereby agree to pay for and in consideration of these presents, the said sum of Four Thousand ($4,000 00/100) Dollars as above mentioned and set forth, as follows:
    “ The sum of Two hundred and fifty 00/100 Dollars at the. time and place of the execution, ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the sum of Three thousand seven hundred and fifty 00/100 Dollars at the time and place for closing the title thereto.
    ■ “Sixth. In case of the failure of the consummation of the covenants herein contained by either party hereto, nothing herein contained shall be construed as a waiver of the right or interests ;of any of the parties hereto, as they have heretofore existed, before the execution of this agreement.
    
      “In Witness Whereof, the respective parties to these presents have set their respective hands and affixed their seals the day and year first above written.”
    
      Jerome Eisner, for the appellant.
    
      Henry A. Forster, for the respondent.
   Per Curiam :

The action was brought to enforce the specific performance of a contract. The demurrer interposed was based upon the ground that the complaint failed to state facts sufficient to constitute a cause of action.

It appears from the averments of the complaint that the parties were the owners of the property which is the subject of the contract as tenants in common, and on the 20th day of August, 1898, they entered into an agreement, the subject of the action, by which the' defendant agreed to purchase and the plaintiff to convey to the defendant by quit-claim deed his interest in the property for the sum of $4,000, $250 of which was paid at the time of the execution of the contract.

The basis for the demurrer is found in the 6th clause of the agreement which in substance provides that in case of the failure to consummate the same, nothing contained therein should be construed as a waiver of the rights and interests of the respective parties as they had theretofore existed before the execution of the agreement. The claim of the defendant is that by virtue of this provision the contract had no binding force or effect upon either of the parties thereto at any time since its execution, that its operative effect was to immediately restore the parties to their former condition. Such evidently is not the construction of this clause. It had reference to a failure to fulfill the same based upon matters entirely extrinsic to the obligations created by the contract itself. It had no reference to and was not intended to .make provision for a breach of the contract by one of the parties to it or to authorize such breach; otherwise, the contract was a mere idle ■ form. When it was made the parties evidently intended to fulfill it, and it was then in part executed. It would be quite absurd to say that the parties intended by this clause to merely provide a form of contract that in no respect changed their rights or liabilities. The construction of the contract, holding that the clause in question was not intended to authorize a breach of its terms and conditions by either party, but that it intended that, if anything intervened to prevent the fulfillment of the contract on account of matters not involving a breach of duty by either party thereto, then the contract should not operate to change the respective rights and interests of the parties in and to. the property as the same existed prior to the execution of the contract, gives full force and effect to all of its terms. This gives full force to all of the provisions contained in it, and as such enforces liability which was intended to be incurred by its execution. It follows that the judgment appealed from'is right and that it should be affirmed, with costs.

Present—-Patterson, Ingraham, McLaughlin and Hatch, JJ.

Judgment affirmed, with costs.  