Reports of Cases Heard and Determined in the Supreme Court of the State of New York
This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1876 edition. Excerpt: ... ex-ecutory contract, whether written or oral, is not merged in a subsequent writing by way of partial execution, unless the latter is accepted in substitution or in full performance of the original contract. The plaintiff accepted the deed (holding him to an acceptance) with the understanding, on the part of both parties, that it carried good title. The defendant received full consideration and still holds it, on the faith of such understanding. He is therefore bound in justice and equity to make it good. Then how can this result be effected? It may be effected by a modification of the decree, so as to require the defendant to give a warranty deed of the premises, as of the date of his quit-claim, and, by its terms, to have effect as of that date. It can be readily drawn thus to limit its effect. But this can be required only on the payment to him by the plaintiff of the $300, and interest to be computed from that time. The delivery of the deed and the payment of the money were, in so far as we are able to see, to be simultaneous acts. It may be said that this will leave the plaintiff without indemnity against the mortgage covering the property, 6ave under the warranty deed. But this was all he contracted for, and is all the court can give him. All he can claim is that he have a deed with covenant of warranty, or its equivalent. lie must look to that for his indemnity. In my opinion the judgment should be modified as above suggested. Present--Learned, P. J., Bockes and Boardman, JJ. Judgment reversed, new trial granted, costs to abide event. WELLINGTON P. MYNARD And WILLIAM F. BLANK, Respondents, V. THE SYRACUSE, BINGI1AMTON AND NEW YORK RAILROAD COMPANY, Appellant. Common carrier--right of, to make a special contract for transportation of...
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