Jacocks v. Morrison

Full title: EMILY H.C. JACOCKS, Respondent, v . LEWIS J. MORRISON, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 11, 1908

129 App. Div. 284 (N.Y. App. Div. 1908)

113 N.Y.S. 322

Opinion

December 11, 1908.

Herbert R. Limburg, for the appellant.

Dudley Dupignac, for the respondent.

HOUGHTON, J.:

The complaint alleges that the defendant agreed with plaintiff's assignor, one George M. Jacocks, that he would procure to be conveyed to him fifteen acres of land owned by the Federal Copper Company, "to be selected by the said George M. Jacocks out of one of the plots owned by the said company," or in default of such conveyance to pay to him the sum of $3,500 in cash, and that such conveyance was not procured, and that, therefore, the $3,500 became due.

The defendant demurred to the complaint on the ground that it did not state a cause of action, and the demurrer was overruled.

The chief defect of the complaint is that it is not alleged that George M. Jacocks selected any particular fifteen-acre plot. The complaint is fatally defective because of the omission of such an allegation. Under the contract set forth in the complaint the defendant was not liable to pay the stipulated amount until he was put in default by failure to procure conveyance. He could not be guilty of such failure until the particular plot had been selected, for selection was a condition precedent. The defect was not cured by the allegation that "a demand was duly made by the plaintiff" after assignment of the contract to her; that the defendant should perform his agreement by causing such conveyance to be made because so far as appears from the allegations defendant did not know and could not know what particular fifteen-acre plot George M. Jacocks or the plaintiff desired should be conveyed. If from death or incapacity George M. Jacocks could not make the selection, such excuse should have been pleaded. If from such an event selection devolved upon the plaintiff after assignment of the contract to her the complaint should have alleged a selection on her part.

The interlocutory judgment overruling the demurrer must be reversed, with costs, and the demurrer sustained, with costs, with leave to plaintiff to serve an amended complaint on payment of costs of this appeal and of the court below.

PATTERSON, P.J., McLAUGHLIN, LAUGHLIN and SCOTT, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.