Ziehen v. Smith

148 N.Y. 558

 

RULE:

In order to entitle a party to recover damages for the breach of an executory contract he must show performance or tender of performance on his part. He must show in some way that the other party is in default in order to maintain the action, or that performance or tender has been waived. But a tender of performance on the part of the vendee is dispensed with in a case where it appears that the vendor has disabled himself from performance, or that he is on the day fixed by the contract for that purpose, for any reason, unable to perform.

FACTS:

Parties signed a contract, whereby the defendant was to convey a hotel and some adjacent land to the plaintiff. Plaintiff was to pay $800, assume an existing mortgage of $1,000 and take out a mortgage of $1,700. The lower courts assumed that the payment of $300, bond execution and mortgage, and the delivery of the mortgage were to be concurrent. Because the property was encumbered, the plaintiff sought to recover damages for the sale of real estate from the defendant, when the defendant could not deliver title on the agreed upon date. The lower court allowed the plaintiff to recover, and the defendant appealed from the ruling.

ISSUE:

Whether the plaintiff successfully proved a breach of contract to the extent that the plaintiff should be able to recover from the defendant.

ANSWER:

No, the plaintiff did not successfully prove a breach of contract to the extent that the plaintiff should be able to recover from the defendant.

CONCLUSION:

In reversing the lower court's decision, the Court found that there was no proof that the defendant waived tender or demand and that the contract was not broken by the mere fact of the existence of the encumbrance on the date of performance when it was within the vendor's power to remove it.

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