Opinion
November, 1905.
Hillquit Hillquit, for appellants.
Louis J. Frey, for respondent.
On October 26, 1904, the defendants agreed in writing to sell the plaintiff certain premises on Lorillard place in The Bronx, for $3,550; to be paid for by $50 deposit down, $250 on signing the contract on or before October 29, $1,250 on delivery of the deed on or before sixty days and $2,000 on bond and mortgage for three years. The husband of the plaintiff paid the deposit and, as he testified, with offer of the next payment of $1,250, on each of the days, twenty-seventh, twenty-eighth and twenty-ninth of October, demanded but received no contract. Both sides, on this appeal, treat the agreement as an option; and each relies upon doctrines stated in Boyd v. De Lancey, 17 A.D. 567, whereunder, failure to comply with the call entitled the plaintiff to recover the value of the promised contract upon the date when it should have been executed. Aside from the absence of evidence of authority in her husband to act for the plaintiff, her recovery of $500 cannot be sustained because of the lack of competent evidence for its support. Of her two experts on the value of the contract, the first put it at $1,200; but he disclosed, on cross-examination, that he had never sold any contracts and stated that the contract was not worth more than $450, the difference between the price agreed to be paid and his estimate of his value; saying, also, "if Mr. Bender had received a contract first for the sale of the property; and then if that contract had been performed and she should have received it, I consider that she would have made by the transaction $450." Predicating the value of the contract upon its performance begged the main question, even on his theory; for failure to perform the proposed contract might entitle the intending vendee only to refund the money paid, and justified outlays. Her other expert set the value of the contract at between $1,000 and $1,200, saying, in his own qualification, that he bought and sold contracts and had sold one contract in One Hundred and Eighty-sixth street above Belmont and Crescent near Lorillard place. This qualification by experience was scanty. His basis of valuation was erroneous, for it depended upon his estimate of the value of the realty, although he knew of no such sales, and upon the rise in value of property in November.
Present: SCOTT, GILDERSLEEVE and MacLEAN, JJ.
Judgment reversed and new trial ordered, with costs to appellants to abide event.