Grote v. Grote

Ingraham, J.

(dissenting):

1 do not concur with Mr. J ustice Scott in the conclusion that the plaintiff is entitled to rescind this transaction or cancel the deed to the defendant. The transaction as set out in the complaint was a valid .conveyance of real property, the consideration for which was the contract made by the defendant by which the plaintiff was to have a room and a home for his natural life in the dwelling house on the property conveyed without expense to him, and to have for his natural life board with the defendant and her family in said dwelling house. The transaction was complete, the property conveyed for'a valuable consideration and the plaintiff was entitled to enforce the'agreement. ■ The subsequent failure of defendant to comply with the agreement did not destroy the consideration as the obligation to perform the contract still existed. The motive of the defendant as alleged was not fraud which justified rescinding the whole transaction.

In some cases courts have allowed a plaintiff to prove- the value of the contract to the grantor or the amount that it would cost to comply with the contract by the grantee and imposed a lien upon the property for that amount, but it seems to me clear that this is the extent to which the plaintiff in such an action can be given relief in a court of equity. Ho facts were alleged which would justify' the court in holding this agreement to be a condition subsequent which would entitle the plaintiff to a recovery of the property upon a breach of the contract. The plaintiff conveyed the *846property relying upon, the promises of the defendant to comply with her contract, and certainly all that the plaintiff is entitled to recover is the damages sustained by a breach of the contract and subjecting the property conveyed to a lien, to secure the amount of such damages when ascertained. If the plaintiff is paid the damages caused by a breach of the contract he would he in exactly the same position as if the contract had been complied with. As there is no allegation as to the amount due to the plaintiff upon the breach of the contract and no demand made to recover that amount, I do not think that relief can he granted in this action.

I think, therefore, that the demurrer should have been sustained.

Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below.