The plaintiff asks for a decree for specific performance of an agreement to sell some land on Fifty-fifth street and 8th avenue, in the city of Hew York. The court gave judgment for the defendant, from which judgment the plaintiff appeals.
The agreement on which this action was founded is very imperfect in its character. It binds the defendant to sell the property at a fixed price, to be paid in installments to suit the purchaser; $5000 on delivery of the deed, and the balance in installments, without providing for any mortgage or security for the purchase money, and *495without any time being fixed for the completion of the contract.
The circumstances under which the contract was executed were not of a character to call for its enforcement by the court. ■ It was drawn by the plaintiff, to be signed by the defendant, a female not versed in such matters, in the absence of any legal adviser, when she had been for a long while an invalid, confined'to the house by sickness, in embarrassed circumstances, and urged to execute it by the plaintiff. The defendant also signed the contract under a misapprehension of its contents, as to the terms of payment, as she understood that the whole purchase money was to be paid in cash. These are the findings of the court, upon the evidence. ,
It also is in proof that the plaintiff had applied to the savings bank to obtain a loan on the property for less than the amount to be paid, and this fact strengthens the supposition naturally drawn from the contract, that he did not contemplate giving any security to the defendant for any installments that would come, due after the delivery of the deed. ;
In addition to these facts, the mode in which the acknowledgment by the defendant was obtained, the unexplained difficulty as to the date, and the strong contradictory evidence as to the fact of .any acknowledgment having been made by the defendant, throw great doubt on the Iona fides of the whole proceeding.
Added to these facts, the delay on the part of the plaintiff between the making of the contract and making the tender, shows that the object of the plaintiff was merely to use the contract for the purpose of a speculation in selling the lots, if an opportunity offered.
The statement of these several matters, connected with this alleged contract, we think fully justifies the decision of the justice before whom the case was tried, in refusing to decree specific performance. The terms were not fair *496and just, and the circumstances under which it was executed were such as to render it very doubtful whether it was understood by the defendant in such a way as to make it a valid contract on her part, or at any rate not so clearly, as to call for a decree of specific performance, even though the court do not impute to the purchaser any intended deception or fraud.
But it seems to me that the justice who tried this case, while he refused to 'decree specific performance, should have retained the case for the purpose of awarding to the plaintiff the damages he was entitled to for the non-performance. The rule is now well settled that in actions brought for equitable relief and tried before a judge, if there appears to be no ground for granting such relief, the court should retain the cause and grant such legal relief as may be just. (Marquat v. Marquat, 12 N. Y. Rep. 336. Central Ins. Co. v. Protection Ins. Co., 14 id. 85. Despard v. Walbridge, 15 id. 374. N. Y. Ice Co. v. Northwestern Ins. Co., 23 id. 357. Phillips v. Gorham, 17 id. 270.)
In the N. Y. Ice Co. v. Northwestern Ins. Co., (supra,) The chief justice says: “ It was erroneous to turn the plaintiff out of court on the mere ground that he had not entitled himself to the equitable relief demanded, if there was enough of his case to entitle him to recover,” &c.
The plaintiff alleges in hig complaint that he paid $50 on signing the contract, and that he has since paid other sums, amounting to $377, making in all $427, which, if the contract is not performed, he is entitled to recover from the defendant, with interest from the dates of payment.
The plaintiff proved that the price he was to pay for the lots was a full price for them, and none of the witnesses state any increase in value; there is no other damage, therefore, proven.
The judgment for the defendant should be reversed, and judgment ordered for the plaintiff for $427 and interest from the dates of payment.
*497[New York General Term, January 3, 1870.If the parties do not agree on the amount, the judgment is opened and the ease referred to Thomas W. Gierke, Esq., to take proof as to the amount the plaintiff is entitled to recover, and report thereon, with his opinion.
Ingraham, Geo. G. Barnard and Brady, Justices.]