Wednesday, December 25, 2013

Ziehen v. Smith case brief

Ziehen v. Smith case brief summary
42 N.E. 1080 (N.Y. 1896)

Defendant vendor appealed a judgment of the Supreme Court in the Second Judicial Department (New York), which affirmed a judgment in favor of plaintiff vendee for damages for breach of an executory contract for the sale of real estate and affirmed an order denying a motion for a new trial.

By contract, the vendor agreed to convey to the vendee a hotel and adjacent land in exchange for $ 3500, which was to be paid with $500 down, a later payment of $ 300, the assumption of an existing mortgage, and the vendee's bond and mortgage on the property. At the time of the execution of the contract there was another mortgage on the property unbeknownst to the parties, made by a former owner and upon which a foreclosure action was pending. Following foreclosure, which occurred after the date of performance of the parties' contract, the property was sold to a third party. The vendee brought an action seeking damages for the vendor's breach of the contract. The lower courts assumed that the date of the payment was the day designated for mutual performance and found in favor of the vendee.


  • On appeal, the court reversed and granted a new trial. 
  • The court agreed with the construction of the date of performance. 
  • However, the court concluded that there was no proof that the vendor waived tender or demand and that the contract was not broken by the mere fact of the existence of the incumbrance on the date of performance when it was within the vendor's power to remove it.

The court reversed the lower courts' judgments in favor of the vendee and granted a new trial in the vendee's breach of contract action against the vendor.

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