In Supreme Housing Corporation v. Schreiber (supra) the plaintiff did not sue on the check until after it had disposed of the property.Summary of this case from Palmer v. Golden
October 31, 1924.
Thomas F. Thornton, for the appellant.
David Diamond, for the respondent.
Judgment unanimously reversed on the law, with thirty dollars costs to the appellant, and complaint dismissed, with appropriate costs in the court below, without prejudice to an action for damages.
The plaintiff waited until it had disposed of the property before this suit was commenced on the check. The check was but a substitute for a cash payment provided in the contract. ( Divine v. Divine, 58 Barb. 264.) By waiting until the full purchase price was due under the terms of the contract, before plaintiff could recover the whole purchase price, or any installment thereof, plaintiff had to be in a position to convey the property. ( Beecher v. Conradt, 13 N.Y. 108; Hoag v. Parr, 13 Hun, 95; Ewing v. Wightman, 167 N.Y. 107; Gorham v. Reeves, 3 Ind. 83.)
No tender was necessary, since the defendant had repudiated the contract, but the ability to perform was necessary. ( Eddy v. Davis, 116 N.Y. 247.) On the delivery date set by the contract, the plaintiff had the ability to perform and could have then sued for the entire purchase price. Had it done so, it would have impliedly held itself ready to tender the deed upon payment of that price. Plaintiff, however, did not sue for the entire purchase price, but sold the property. By that act the plaintiff manifested an election to hold the defendant for damages for the breach of the contract. It could not then sue for a part of the purchase price. Its remedy was an action to recover the difference between the contract price and the market value of the property at the time of the breach.
Present: CROPSEY, LAZANSKY and MacCRATE, JJ.