Ayres v. Pease
New York Supreme Court
The plaintiff declared in covenant on an article of agreement entered into between him and the defendants, bearing date 31st October, 1828, whereby he agreed to sell to the defendants two lots in the village of Havana, and the defendants agreed to pay to him therefor the sum of #350, of which sum #36,50 to be paid on the execution of the article, and the residue in two years, with interest annually ; and the defendants also agreed to enclose the lots with a good and…
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The plaintiff declared in covenant on an article of agreement entered into between him and the defendants, bearing date 31st October, 1828, whereby he agreed to sell to the defendants two lots in the village of Havana, and the defendants agreed to pay to him therefor the sum of #350, of which sum #36,50 to be paid on the execution of the article, and the residue in two years, with interest annually ; and the defendants also agreed to enclose the lots with a good and substantial fence. On performance by the defendants, the plaintiff to procure from one George Mills a good warranty deed for the…
1Opinion of the Court
By the Court,
Sutherland, J.
The plea is clearly bad, both in form and substance. It is a plea of tender before suit brought, but it mates no profert in curia of the money tendered, and it is pleaded in bar of the action, instead of in bar of damages beyond the sum tendered. These objections to the plea are both fatal. 2 Chitty’s Pl. 432, 498. 1 Ld. Raym. 254. Indeed the plea was admitted by the defendant’s counsel to be bad in these and other respects ; but he contended that, by the true construction of the contract, the defendants were at liberty to abandon it by paying $25, the sum agreed on…
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