Maier v. Rebstock

Spring, J.:

On January 10, 1893, defendant conveyed to the plaintiff a parcel of land situate in the city of Buffalo for $720; of' the purchase price, $220 were'paid in cash find $500 were secured to the vendor by the bond and mortgage of the vendee due in three years from date. Contemporaneous with the delivery of the conveyance the vendor executed, as a part' of the consideration of the transaction, the following instrument:

“ Buffalo, N. Y., Jany. 10th, 1893.

“ Guarantee to Chas. W. Maier.

“ I hereby agree, if at the end of three (3) years you can’t sell' at an advance to cover six (6) per cent, interest on investment, I will take the land back and refund money, also pay you six (6) per cent, interest and all other' expenses connected with transfers, recording, etc.

“JOSEPH H. REBSTOCK.

“ Per S. J. Rebstock, AttyP

The plaintiff claims that he has been unable to sell the land and has sued upon the agreement to recover the purchase price and taxes which from time to. time have been levied upon the land arid paid by the plaintiff. By the terms of the agreement the three years stipulated therein expired on January 10, 1896, but the present action was not commenced until July, 1901. On the trial the court directed, a verdict for the plaintiff for the full amount of the purchase price, together with interest and the taxes paid, including interest thereon. In this we think the court erred. As we interpret the agreement, the plaintiff had a reasonable time after the expiration of the three years’ limitation in which to reconvey the land to the defendant. He was not permitted to make an election to await a favorable turn in the selling price and still keep his grip on the liability of the defendant. What is a reasonable time in view of all the circumstances is ordinarily for the jury to determine. (Pierson v. Crooks, 115 N. Y. 539, 551; Grabfelder v. Vosburgh, 90 App. Div. 307.)

The plaintiff allowed five years to elapse before endeavoring to hold the defendant on the agreement. If nothing had transpired in the interim indicating that the defendant acquiesced in this delay or allowed the time to run along realizing that his liability continued, then, as matter of law, he would be absolved therefrom. A brief review of the conduct of the parties after the expiration of the three years’ limitation will aid us in appreciating the real situation.

The plaintiff testified to his fruitless efforts to sell the land during the three years, and that he continued his efforts thereafter. In February, 1896, which was shortly after the expiration of the time period in the agreement, he put the lots for sale in the hands of real estate dealers in Buffalo and for a year and a half they had charge of the property as selling agents, but made no sale. The plaintiff testified he never had any offer for this property except he states in a letter that he was once offered four dollars a foot, which was far below the purchase price.' He has testified that he often talked with the defendant in regard to the prospect of selling this land and was advised that it was good. He saw him once or twice each year down to 1899 or 1900 in reference to selling the land, but was unable to make any sale. He resided in Seneca Falls and knew but little concerning the value of the land, while the defendant was a resident of Buffalo and apparently familiar with the selling value of property of this kind and appreciated the difficulty in disposing of it. Whenever the plaintiff was in Buffalo he met the defendant and they, talked over the situation in reference to this land.

On the 7th of February, 1901, he wrote to the defendant that “As you know, we have been trying t® sell them, ever since we bought, but have never had but one offer and that was for $4.00 a foot.” He then called attention to the agreement of the defendant to “take the lots back” if they were unable to sell within the three years. He then adds: “ We have held off, thinking perhaps that we could get rid of them, hut as there don’t seem to be much prospect, thought that I would write you, and get the thing .closed up.” The defendant replied to this and another letter, not in evidence, saying he had “ been making inquiries; ” that real estate was “ picking up and there is no question that you will be able to sell, and I think at a profit, this summer.” It will be noted that the defendant does not claim that the plaintiff had elected to retain the land or that the agreement had become inoperative by lapse of time. The plaintiff thereupon wrote-two letters to the defendant advising him that he desired to reconvey the .land and receive the purchase price and expenses in -accordance with' the contract of the defendant. He says in the letter of February twentieth: “ The 6 per cent investment under your guarantee is profit enough for me, and I want to settle the thing up. Our agreement, when I bought the lots,-was that you would take them off my hands, if I were unable to sell them, and this is what I want you to do. If, as you think, values will rise, you will be the gainer. Ton are on the ground and can look after them, while I am not, and could not watch the market so as to know when was the best time to dispose of them. In thinking it all over I want the guarantee fulfilled.”

And in the letter of April fourth: “ I expect you to' fulfill that guarantee and cannot see why I should wait, until you make inquiries as to the value of the property.” Oh the twentieth of April the attorneys for the plaintiff wrote to the defendant insisting upon a prompt adjustment of the matter. In response to this letter the defendant on the twenty-fifth of April wrote to the plaintiff saying: “ I will keep my agreement made with you. I hardly think it necesary to employ an aíerney. I haven’t the cash on hand at present but think I will he ab.el to arrange it this Fall. Will you send me a copy of the agreement'; hope this will be satisfactory to you.” The defendant not only does not repudiate his liability or claim that the plaintiff has deferred bis demand too long, but distinctly recognizes the binding force of the agreement. The defendant in his testimony did not claim that he told the plaintiff he was not liable on this agreement, and he did not deny that after the expiration of three years the plaintiff repeatedly conferred with him in regard to selling the lots and as to the prospect of finding a purchaser..

In view of all of this testimony, supported and elucidated by the correspondence mentioned, we think it was for the jury to determine in the first place whether the plaintiff during the three years stipulated in the agreement exercised reasonable diligence and made proper efforts to sell these- lots. In the second place it was for the jury to find whether the defendant, under all the circumstances, acquiesced in the delay which was made,, appreciating that his liability, in compliance with the agreement, was subsisting* during all of this time. ' If so, the jury might say the plaintiff commenced his action seasonably.

Soon after the purchase of the land the plaintiff, by some arrangement, the nature of which is not clearly disclosed by the record, transferred some interest in this land, or the profits which might accrue therefrom, to his brother,. Edward Maier. The latter paid to the plaintiff one-half of the cash payment, one-half of the bond and mortgage, and one-half of the taxes falling due from time to time. If this, arrangement was equivalent to a sale of one-half of the premises, then the plaintiff, to the extent of the money received, must give credit upon the agreement sued upon. If the plaintiff had sold to his brother the entire parcel of land, receiving the full purchase price paid by him,, but retaining title in himself because of an agreement that he was to share in any profits which might accrue from the sale of the land, I take it the arrangement would relieve the defendant from his liability on the agreement. That contract was designed to indemnify the plaintiff against any loss on his investment by insuring its repayment or reimbursement, including* ■the taxes and incidental expenses provided for in the agreement. If he received the full return of his investment with interest and taxes, by virtue of another agreement, so that he has lost nothing, then the defendant should not be called upon to pay. If he has received in part the purchase price, a ratable reduction should be made of his claim against the defendant. The maximum limit of the latter’s: liability is the loss, -sustained by the venture of the plain tiff. If the plaintiff' has been in part reimbursed by a sale or by a ■contract tantamount to a sale, in that it lessened his loss, he should be content if the defendant is held bound to him for the balance of .his investment.

The defendant offered in evidence certain letters of said Edward .Maier to him, and which are referred to in the letters of the plain'tiff to the defendant, and they were excluded by the court. Later the defendant sought to show that he offered to Edward Maier to take the land back “ if they were not satisfied ” with it; “ that he had an. offer of $14 per foot.” This was also' excluded. Without going into the evidence in detail we think Edward Maier is sufficiently connected with this land transaction to render the evidence ■offered competent. The two brothers were, to some extent at least, interested in the speculation and were together endeavoring to sell the lots, and together were writing and conferring with the defendant in regard to them. The act of one was the act of the other and was so recognized by the plaintiff.

The defendant’s exceptions should be sustained and the motion .for a new trial granted, with costs to the defendant to abide the event.

Williams and Hisoook, JJ., concurred: McLennan, P. J., cori•curred in result only in separate opinion, in which Stover, J., ■concurred.