Husson v. Oppenheimer

The court erred in its findings that the modification of the contract was not agreed to by the defendant. The facts are briefly these: Plaintiff had a contract to purchase lands of one Smith, dated January 27, 1882. The deed was to be taken in ninety days; plaintiff assigned the contract to defendant on the 28th of January, 1882. The assignment was contained in two papers. One absolutely conveyed the contract to purchase for fifty dollars, to the defendant, and was executed by plaintiff only, and the other was an agreement between the parties that defendant should pay plaintiff $450 cash, or one-third of the profits of the pur*313chase, the option to be exercised by defendant within the time during which he could take the deed. On the 10th of February, 1883, there was indorsed on the contract in reference to the payment of the $450, or a share of the profits, these words:

“In consideration of the sum of $15 (fifteen dollars) to me in hand paid, I hereby agree to modify and change the foregoing contract by accepting in full payment and satisfaction thereof the sum of $425.

JOHN A. HUDSON.”

Dated February 10, 1882.

The complaint avers this to have been a mutual agreement. The answer admits that in consideration of fifteen dollars paid plaintiff by defendant, the plaintiff agreed to modify the aforesaid contract by accepting $425 instead of $450. The only difference between the parties was this, the plaintiff claimed the right to the $425 to be absolute and unconditional, and the defendant claiming that it was dependent upon the plaintiff taking the deed, which he never did. There was no dispute about the agreement, but only as to its effect. The plaintiff is entitled to recover under either paper. The defendant was bound to take a deed within the time limited. If he took no deed, which is admitted, he was bound to pay $450 at the end of ninety days from the date of the Smith contract. The abandonment of performance by him was a legal option to pay the money price. The modification of the contract having been admittedly made by both parties, and for' a good consideration, limits the claim to the amount called for by this modification paper. If the question was material, it seems quite clear that the modification was designed to put a fixed money price at all hazards, payable, and at once, in the place of the original option.

As we have observed, that option had been' already made. The judgment should be reversed and a new trial granted, costs to abide event.

Dykman, J., concurs.