
    SMYTH v. STURGES.
    
      N. Y. Supreme Court, First Department, General Term,
    1883.
    Action by Vendor for Damages for not Fulfilling.—Contract of Sale; fixtures.—Cause of Action.—Judgment for Performance with Compensation.—Pleading; allegation of Fraud unproved.
    Under an executory contract for the sale and conveyance of a “store and premises,” made by a vendor who offered the premises as they appeared, with water and gas pipes and fixtures, the purchaser is not bound to accept a conveyance after the pipes, &c., have been removed, to the serious depreciation of the value of the property, even though the removal was rightfully made by an outgoing tenant, and the vendor contracted in ignorance of the tenant’s right to remove them.
    
      An action merely for damages for refusal to accept such a conveyance the court cannot sustain by allowing to defendant a compensation for diminution in value.
    The fact that defendant alleges fraud on the part of plaintiff or his assignor, in inducing the making of the contract sued on, and fails to prove it at the trial, does not prevent him from prevailing, if, disregarding the evidence adduced to show fraud, enough remains to show that plaintiff was not entitled to performance.
    
    Appeal from a judgment entered at circuit, upon verdict for defendant, upon direction of the court.
    William B. Smyth sued Gfeorge W. M. Sturges on an executory contract for the purchase by defendant, from plaintiff’s assignor, of real property in the city of New York.
    The complaint, after alleging the making of a contract between one Trask and the defendant, of which a copy was annexed, continued by alleging that, on the day and at the place fixed by the contract, Trask, in conformity with the contract,'tendered to the defendant a sufficient deed of the premises, made at his request to a third person named in the complaint, and then and there demanded the consideration; alleged that Trask had otherwise duly performed all the conditions of the agreement; “ that the defendant willfully and fraudulently neglected to comply with the terms of the said agreement on Ms part, and wholly failed to pay the purchase-money aforesaid &o., &c., to said Trask, to Ms damage $25,000.”
    It then alleged a transfer by Trask to plaintiff of the foregoing claim for breach of said contract.
    Defendant’s answer denied every allegation of the complaint except the making of the contract, and alleged that Trask, plaintiff’s assignor, falsely and fraudulently represented to plaintiff that he was owner of the premises, and went with him to view them; and, with intent to deceive him, represented that the stores and all the fixtures therein belonged to him, Trask, and would be immediately available to defend-, ant for tenants,, and that they would be sold as part and parcel of the premises.
    That defendant, relying on and induced by these representations, made the contract; that Trask knew such representations to be false, and that the stores and fixtures belonged to a tenant who had a right to remove them, and did remove them, before the day fixed for the performance of the contract.
    
      Albert Matthews (Johnson, Tilton & Brodsky, attorneys) for plaintiff, appellant.
    I. The alleged “fixtures,” having been put up for temporary accomodation of the tenant, by himself, with intent to remove the same, belonged exclusively to the tenant, were personal property, not part of the realty, and could not be sold or conveyed by another (Tiff v. Horton, 53 N. Y. 377; McRea v. Central Nat. Bank of Troy, 66 N. Y. 489, 495 ; Sisson v. Hibbard, 75 N. Y. 543, 546 ; Globe Marble Mills Co. v. Quinn, 76 N. Y. 23, 25).
    II. The alleged declaration of Trask (if made) that these so-called “fixtures” should be deemed part of the premises, could not convert this personal property into realty (McKeage v. Hanover Ins. Co., 81 N. Y. 38).
    III. The mere fact of actual, personal possession by the tenant, was legal notice to all purchasers of his rights as owner of the so-called “fixtures ” upon the premises, and the defendant’s contract was made subject to these rights (Grimstone v. Carter, 3 Paige, 427, 437; De Ruyter v. St Peter’s Church, 2 Barb. Ch. 555 ; Bank of Orleans v. Flagg, 3 Barb. Ch. 316; Laverty v. Moore, 33 N. Y. 658; Livingston v. Arnoux, 56 N. Y. 507).
    
      IV. The court erred on the trial first, by allowing the introduction of parol evidence, in conflict with the letter of the contract, of “ false representations; ” and, secondly, by refusing to allow the plaintiff to submit to the jury the question of fraud or bad faith on the part of the seller in the premises (Koehler v. Adler, 78 N. Y. 287, 291 ; Justice v. Lang, 52 N. Y. 323, 328 ; Hart v. Hudson R. Bridge Co., 80 N. Y. 622).
    
      J. C. Julius Langbein, for the defendant, respondent.
    I. The testimony as to what was said between the seller and the defendant and his witnesses was properly admitted. It was in explanation of the intent and meaning of the parties by the words, “stores and premises,” in the contract of sale (Hinnemann v. Rosenback, 39 N. Y. 98; Funk v. Brigaldi, 4 Daly, 359; Pettit v. Shepard, 32 N. Y. 97; Collender v. Dinsmore, 55 N. Y. 200; Lawrence v. Gallagher, 73 N. Y. 613).
    II. The rule is a general one that upon a sale of the freehold any and all fixtures attached to it will pass, unless there is some express provision to the contrary. For here the presumption is strong against the vendor, who should expressly reserve from sale such articles set up in the freehold as he wished to remove for himself ; since a vendee is not asked to make a purchase of lands blindfold (Schouler on Personal Property, 150).
    III. Under all the authorities, not only in equity, but at law, the proofs in the case entitled the defendant to a judgment in his favor (Jenkins v. Fahey, 73 N. Y. 355; Hubbell v. Van Schoening, 49 N. Y. 326; Merchants’ Bank v. Thomson, 55 N. Y. 7, 9).
    IV. The direction by the court to the jury to find a verdict, under the evidence, for the defendant, and the denial by the court, on plaintiff’s motion to allow him to go to the jury as to the credibility of the defendant’s witnesses as to the seller’s representations regarding the fixtures, was not error for which the judgment should be reversed. Hodge v. City of Buffalo, 1 Abb. N. C. 356 ; Elwood v. Western Union. Tel. Co., 45 N. Y. 549 ; Sheridan v. Mayor, &c. of N. Y., 8 Hun, 424, 430, rev’d in 68 N. Y. 30; Kavanagh v. Wilson, 70 N. Y. 177; Nicholson v. Connor, 8 Daly, 212 ; Gildersleeve v. Landon, 73 N. Y. 609.
    
      
       For a different rule as to plaintiff’s allegation in some cases see Code Civ. Pro. § 649, subd. 4.
    
   Davis, P. J.

When the contract for the sale of the property described therein was made, all the fixtures subsequently removed by the tenant were in the building, and in such condition that if they had belonged to the vendor, the plaintiff’s assignor, the title to them, would undoubtedly have passed to the defendant, under the general description in the contract—“store and premises.”

The fact that they belong to the tenant, under such circumstances that he was entitled to take down and remove them, was not made known to the purchaser. Prom the evidence in the case, that fact was apparently not known to Trask, the vendor. But if it were, it clearly appears that he had not in any way advised the purchaser of the fact. On the contrary, the evidence shows that he represented that he was offering the premises for sale just .as they then appeared, with the water and gas pipes, water-closets, basins, &c., as parts of and belonging to the property to be sold. As between him and the purchaser, the contract must be held to be an agreement for the sale of those fixtures, or such of them as would pass as part of the real estate, as much as any of her part of the property; and that that was the understanding of the parties, appears beyond dispute, both from what was said at the time the premsies were shown, and from what was said at the time they met at the office of Mr. Bailey, for the purpose of executing the conveyance. Between the making of the contract and the date of that meeting the building had been dismantled, by the removal of the gas and water pipes, water-closets, and the various fixtures enumerated, so that it was at that time in an untenantable condition.

Upon this state of facts the defendant was not bound to receive a conveyance of the property in its altered condition as a performance qf the contract into which he lrad entered; and it was upon this ground, doubtless, that the learned judge, at circuit, directed the verdict for the defendant.

The answer alleged fraud on the part of Trask, the vendor, as a defense. The case, in our judgment, failed to show any fraud on his part; and if the disposition depends upon that question, we should feel it our duty to hold that the court should at least have sent the question of fraud to the jury. But it does not necessarily depend upon that question, for the plaintiff was bound to show upon the trial that his assignor was, on the day and place specified in the contract, -which was the time of the meeting, at the office of Mr. Bailey, ready and willing to perform the contract, by a compliance with its terms, -which he' could only do, under the circumstances, by conveying the property substantially in the condition in which it was when it was sold. If he could not do this, it was no excuse that he was not aware that the tenant in possession was, in fact, the owner, and had the right to remove things apparently appurtenant and belonging to the premises as parts thereof, and the removal of which had seriously diminished their value; nor could he claim the performance on the part of the purchaser by offering to pay to him the money value of the fixtures that had been taken away. To such an offer it was a sufficient answer to say, as the defendant did, that he had bought property in a tenantable condition, fit to be rented without delay, and was not bound to take the same in a condition which would require the restoration of appurtenances and fixtures before the same could be rented.

The defendant had a legal right to refuse to accept the conveyance in the condition in which it then was, and the court had not, in an action of this kind, any power to intervene and require him to accept the same upon conpensation for the diminution in its value by the removal of the fixtures. The action is at law, and must stand uponstrictlegal rights. Upon the evidence, as it stood uncontradicted, there was really no question for the jury, and no reason for submitting the question of fraud or good faith on the part of the vendor.

We see no reason for interfering with the verdict on any exceptions taken to the admission of testimony during the progress of the trial.

All that was said and done antecedent to and at the time of making the contract was properly admitted as bearing upon the question of fraud ; and although the defendant failed to establish the allegation of fraud, it does not follow that the verdict should be disturbed if the evidence is admissible as a part of his effort to establish it.

If all that is objectionable is stricken out of the case, there would still remain the controlling fact, that the plaintiff’s assignor had agreed to convey the store and premises, which contained valuable fixtures appurtenant to the land, and forming part of the building, which, at the time of the offer of the conveyance, had been taken down and removed by their owner, so that the store and premises were in material respects not the same property agreed to be purchased.

We think the judgment should be affirmed.

Brady and Wright, JJ., concurred.

Judgment affirmed.  