
    Theodore A. Clexton, Appellant, v. Catharine Tunnard, Respondent.
    Third Department,
    May 24, 1907.
    Vendor and purchaser — pleading —vendor need not allege ability to perform.
    A vendor’s complaint in an action for specific performance of a contract to con- . vey lands need not allege that the plaintiff was “able”, to convey; It is sufficient that he alleges that he is ready and willing to perform the agreement on his part, and that he did tender to the defendant a deed of the premises pursuant to the terms of the agreement, etc. Inability of the vendor to perform ■ is a matter of defense.
    Although the party executing the contract of sale is the husband of the owner ' and executor of the will under which she took the property, the fact, that he describes himself as executor is simply desériptio personas if heñid not execute as executor, and he may sue for specific performance in his individual name.
    Chester, J., dissented, with opinion. ■ •
    Appeal by the plaintiff, Theodore A. Clextón, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of' Saratoga oh the 5th day of December, 1906, pursuant to an order made-.at the Saratoga Special Term and entered in said clerk’s office on' the 5th day of December, 1906, dismissing the complaint, with notice of an intention to-bring up for review upon sucli appeal .the said . order dismissing the complaint. . , .
    In the complaint is alleged in substance that the plaintiff, on the ,10th day of 'May, 1905, entered into an agreement in writing with the .defendant by which the plaintiff agreed to .sell certain lands . therein described to the defendant upon the terms stated in the complaint, and to. deliver to the' defendant a good and sufficient warranty deed for the conveying to her of the said premises; that the said defendant, on the execution of said agreement;, paid to plaintiff the sum of $100 in aqcordance therewith ; that the plaintiff has always befen and still is .ready and willing to perform the skid agreement on his part, and that he thereafter did tender to the -defendant a deed of said premises pursuant to the terms of said agreement and demanded the payment of the balance of the consideration therefor from the defendant, and she then refused,.and ever , since has refused to perform. At the opening of the trial the defend- . ant moved to dismiss the. complaint for insufficiency. Mo evidence • was taken. There appear in the record two papers, one the contract'' upon which apparently the action was brought, and the other, the will under which the title of this property rested at the time of the contract and at the time of the trial. This contract was made between “ Theodore A-Clexton, of Troy, Pfensselaer County, State of. Mew York, Executor of the est.ate-of the late Emeline Lamb of Waterford, Saratoga County, of .the first part, and Mrs. Thomas- Tunnard, of the Village of Waterford, County of Saratoga and State of Mew York, of the second part, in the manner following,” etc. Thereafter follows ■ the' contract upon which the com-plaint is based, which is.signed, “*T. . A. Clexton,- Éx. (L. S.),- Mrs. Tlios. Tunnard (L. S.);” The will of Etnel'ine Lamb purports, after certain legacies, to give -all of the , ■ rest and residue of the 'testatrix’s property to Mary A. Clexton, and 'nominates Theodore A. Clexton, this plaintiff, as her sole executor. It appears by the Complaint that Mary A. Clexton was the wife of the executor, and in the will there is no power of sale given to .the executor. In the reply the plaintiff admits that lie does not have ■ the title to the property wliichhe had agreed, under the contract, to ■ -convey. The court upon the facts and upon the pleadings dis-. missed the complaint, and from the judgment entered thereupon ■ this appeal is taken. ' ■
    
      J. TV Atkinson, for the appellant.
    
      John Scanlon, for the respondent.
   Smith, P. J.:

The complaint itself states aicause of, action. It is criticised :by* the defendant as not alleging that the plaintiff is able to convey the property. It does state, however, that the'plaintiff “has.always been, and still is, ready and willing to perform the said agreement on his part,” and that-he thereafter did tender to the defendant a deed of said premises pursuant to the terms of said agreement and' demanded the payment .of the balance of' the' consideration therefor from the defendant, and she. then refused and ever sincé has refused to perform. This-allegation of readiness and willing- , ness to perform and a tender of a deed pursuant to "the terms of the contract is;, in our judgment, a sufficient allegation of .ability to perform. (Rawson v. Johnson, 1 East, 203 ; Cort v. Ambergate, etc., Ry. Co., 17 Ad. & El. [N. S.] 127, 144.) In Kuntz v. Schnugg (99 App. Div. 191) what is said as to the necessity of an allegation of ability to perform seems to be obiter. Further, inability to perform a contract has,usually been regarded as matter of defense, and it has not been deemed essential to allege ability to perform at the time of making the complaint, as the defendant might be able to give a good title at the time of the decree. (Pierce v. Nichols, 1 Paige, 244; Brown v. Haff, 5 id. 235 ; Reformed Protestant Dutch Church v. Mott, 7 id. 77.)

This contract was executed by the plaintiff individually. It is not executed by him as executor. The addition ' of the word' “ executor ” is simply descriptio ■ personae, and he has the right to bring the action in his individual name as upon an individual contract. '(Litchfield v. Flint, 104 N. Y. 543.) If this contract then be an individual contract, the objection of want of mutuality is not good. The deed which he tendered in performance of the contract would probably have been proven under the pleading to have been the deed of his wife, to whom the' property passed under the will in question. If so, there is no reason why he is not entitled to full performance of the contract and to the moneys that are due thereunder.' '

It is most.unsafe practice to dismiss a complaint without a word of evidence. where the complaint states a good cause of action. What may have been assumed upon tli.e trial as to this will, or as to this contract, are only matters of inference. What was stated by plaintiff’s counsel does not appear. ■ It only appears that he argued against the motion to dismiss the complaint. In the most favorable view of this case for the respondent the will and contract were assumed to have been properly executed and to have been the papers determining the rights of the parties herein. But even then as the. complaint states a good cause of action, there are no facts shown which indicate that the plaintiff upon his proof may not be able to show the right to the relief for which lie asks.

The judgment should, therefore, be reversed on law and facts and a new trial granted, with costs to appellant to abide event.

All concurred, except Chester^ J.,'dissenting in opinion.

Chester, J.

(dissenting):.

I agree with the opinion ,of -the presiding justice that the. complaint. states a cause of .action. I concede, too that it is not correct" practice to grant a motion to dismiss made by counsel for the defendant at the commencement of the trial, .solely on facts stated by him. If that'was all there was of this appeal I would agree that the jtidg- . ment would have to be reversed, but this dismissal does not stand alone "upon such statement of facts.

The. record "does not .show that the motion to dismiss was granted on the facts stated by counsel, but on the facts. The court had •before -it the pleadings and in determining the facts it could properly consider any admissions contained therein. .It also had the will of Emeline Lamb and the contract to convey made hv the plaintiff •dated. May 10, 1905, which, while hot formally introduced "in evidence, were apparently produced for.the use-of the court by plain- ■ tiff’s counsel, and he has included them in the record on appeal,.made by him. Nothing "was "stated by respondent’s counsel before the trial court.as facts, so far as the record shows, which".was not warranted bv such admissions and by these documents. The defendant served her answer containing a general denial of the facts alleged in the complaint and setting up a counterclaim for the $100- paid by her under the contract in which counterclaim she alleged that the agreement of May 10, 19.05, was the only agreement ever made between the parties relating.to the sale of real estate.; that that was made by the plaintiff as executor of the will of Emeline Lamb; that .such will contained no power or authority, to the plaintiff , as executor thereof to sell real estate and that the plaintiff was not at the time of the- execution of the agreement or at the time of the commencement of the action, the .owner of the premises in question. In the plaintiff’s reply it was admitted that the contract of May 10, 1905, was the only contract between the parties and that the plaintiff was not on that day or at the time of the commencement of the action the owner of said real estate;,. The execution and probate of the will of Emeline Lamb."was also .admitted ..as well as the appoint- ■ ment of the plaintiff as the executor thereof;

The .appellant’s counsel did not, before the -trial court, nor" has he in his brief or upon- the argument before this court, in anywise' disputed any of 'the facts shown by these documents, or admitted by the reply. I -think, therefore, we may regard -these . facts as properly before us for consideration. These, regardless of anything said by defendant’s counsel on the trial as to the facts, are sufficient to warrant, In my opinion, the dismissal of the complaint. As there was no power of sale in the will, the plaintiff as executor thereof could not give a good title, and as.he was not the owner of the premises-neither could he give a good .title as an individual. It is clear, therefore, that he was not, at the trial,- in a position to perform the contract on his part because it was impossible for him to give a good and sufficient warranty deed conveying said premises to the defendant as he, as executor, had covenanted- to do. His action. to compel performance on the 'part of. the defendant was, therefore, in my opinion, properly dismissed.

The judgment should be affirmed, with costs.

Judgment reversed on law and facts and new trial granted, with .costs to appellant to abide event.  