Smyth v. Sturges

Where the vendor brings his action to recover damages he must be held strictly to the very terms of his agreement,, and show the performance of all the conditions necessary to be performed on his part to put the vendee in default. T., plaintiff’s assignor, entered into a contract with defendant, by which T. agreed to sell to defendant, and the latter agreed to purchase, certain lots upon which were stores, and to convey the same by warranty deed, free from all incumbrances. There were at the time various fixtures, consisting of partitions, gas-pipe, plumbing, etc., which had been put in by a tenant, who afterwards and before the tender of a deed removed them, in consequence of which defendant refused to take title. T. offered to make compensation,, but this was also refused. In an action to recover damages held, that defendant was entitled to the stores in the condition they were when bargained for, and his refusal to take them with the fixtures removed was not a breach of the contract and that the action was not maintainable. It seems an action in equity for performance of the contract might have been maintained, compensation being made to defendant for the removal of the fixtures.

Appeal from a judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made June 1, 1883, which affirmed a judgment in favor of the defendant, entered upon a decision of the court on trial at Special Term. The complaint shows that, on the 6th of June, 1878, one Trask and the defendant entered into an agreement in writing, hearing that date, and under seal, by which Trask agreed to sell to the defendant certain property described as “the stores and premises known as No. 39 South William street and No. 29 Stone street, in the city of New .York,” for the sum of $30,000, and convey the same “ free from all incumbrances,” by deed containing “ a general warranty and the usual covenants; ” that Trask was ready to perform on his part, and at the proper time and place “ tendered to the defendant a sufficient deed of the said premises and demanded ” fulfillment by him, but that he refused to perform; that Trask sustained damages by reason thereof to the amount. of $25,000; that he assigned his claim therefor to the plaintiff, and he asks judgment accordingly. The answer of the defendant admits the agreement as stated; denies all other allegations in the complaint, and, among others, sets up, as a separate and distinct defense, that on the first of June, and just before the making of the agree-' ment, Trask, in order to induce this defendant to purchase said premises, and to make the said agreement, and with the preconceived intent and design to deceive and cheat and defraud this defendant, falsely and fraudulently stated and represented to this defendant that the stores and all the fixtures therein belonged to him, said Trask; that the same could be rented immediately to a tenant or tenants; that all the partitions and store fixtures in said building and premises, and the divisions therein contained, and all the fixtures, gas pipes, water pipes, wash basins, sinks, water closets, sash doors, sash partitions and other partitions, gas fixtures and all plumbing work, materials and fixtures, and the offices, and matters and things aforesaid, on the various floors in said building, and in the stores thereof, all of which was then there, and on said floors and in said building, and was seen and observed by this defendant, belonged to him, said Trask, and that he, said Trask, was the owner and holder and proprietor thereof, and he, said Trask, would sell them to this defendant along with the fee of said premises, and that they were a part and parcel thereof, and not otherwise; and that he, said Trask, would sell and deliver the said stores and premises aforesaid, in the state and condition in which this defendant then saw them, and that they would be ready for immediate renting to tenants i that the defendant relied upon these representations, and entered into the agreement; that in fact the articles and fixtures so referred to were not the property of Trask, and he could not deliver possession thereof in the state and condition that they then were, so that this defendant could have the immediate use and possession thereof, and rent the same to tenants, as he well knew; that they belonged to a lessee of the premises, whose lease was not recorded, and of which the defendant was ignorant, and the said fixtures were removed by the lessee between the making of the agreement and the day fixed for its consummation, so that the condition of the premises was changed, and they were not as suitable for use as when the agreement was made, and Trask could not convey the stores to him in the condition in which they were when bargained for, and so he failed to comply with his agreement, although the defendant was ready to do so on his part. Upon the trial evidence was given as to these matters, and at its close the defendant moved the trial judge to direct a verdict for him upon the ground “ that the plaintiff or his assignor had failed to prove his ability to give the defendant the possession of the property he contracted to sell and deliver in his contract,” and on the additional ground “that Mr. Trask represented to the defendants that these fixtures went with the premises.” The plaintiff asked to go to the jury on the questions: “First, Whether there was any bad faith on the part of Mr. Trask in respect to these fixtures; and, Second, As to the credibility of the witnesses of the defendant on the subject of any representations alleged to have been made by him concerning these fixtures being or not being a part of the premises that were to be sold under the contract.” The plaintiff’s motion was denied and the defendant’s granted.