THE NEW YORK LEGAL OBSERVER.

N. Y. Common Pleas.-John W. Miller et al. agt. Jaines Moere.

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recoup his damages for the default of the contractor in the performance of his contract.

The views expressed in Kaylor et al., vs. O'Connor, in Special Term, April, 1853, are a reiteration of views regarding the construction of the Act, which remove the objection here made.

In Owens vs. Anderson, a set-off was allowed when the contractor was himself the plaintiff in this proceeding. (8 How. 200.)

In Sullivan vs. Brewster, et al., this court, in General Term, reaffirmed the doctrine of Doughty vs. Devlin, and held that the Act applies to cases where the contract was made before its passage, if the labor, &c., was performed after the Act took effect. (Ib. 207.)

The discussions to be found in the opinions given in various cases above referred to, render it unnecessary for me to repeat the views there expressed.

The next ground urged for a new trial is, that the plaintiff did not sufficiently show that the amount of this recovery was due to him. The defendant answered under oath, and in the answer he states expressly that he is informed and believes that the contractor, (Henry,) has given to the plaintiffs his promissory note for $166 96, and that the note was received by the plaintiffs to be applied on account of the labor and materials for building the houses in question, and for which labor and materials the plaintiffs claim the lien in this proceeding. This is a clear admission of the performance of the work, &c., to that amount-it bears no other construction. The language of a pleading is always to be taken most strongly against the pleader, and if this averment did admit of the equivoque claimed for it by counsel on the argument, the plaintiff has a right to use it as an admission, if it can bear that interpretation. The plaintiffs had a right, therefore, to claim to the extent of $166 96 without further proof of their performance, and that is the amount which they did recover.

But the defendant's counsel insists that the Judge ought to have granted his motion to amend his answer on the trial by striking out this admission. The exercise of the power to allow amendments on the trial must rest in sound discretion, and be exercised with a view to promote justice. I am not aware that a case has arisen in which a party has been permitted to retract a sworn admission. If that be proper in any case, it must be upon very satisfactory evidence that the party has been deceived or misled, or that his pleading was put in under a clear mistake as to the facts. No such proof was exhibited here as the ground of the motion, and I think leave to make such amendment was properly withheld. It follows, of course, that the defendant's offer to show that the materials furnished were not used in the building, was properly rejected. His proof was not offered in support of the motion to amend, or to show that the defendant had answered under a misapprehension of the facts, but as a substantive defence. Clearly he could not urge a defence inconsistent with his answer, in contradiction of his own oath.

The defendant further insisted that the plaintiffs having taken the contractor's note for the amount of their claim, could not afterwards proceed under the statute, and acquire a lien, and that the note should be regarded as payment.

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THE NEW YORK LEGAL OBSERVER.

N. Y. Common Pleas.-John W. Miller et al. agt. James Moore.

I need hardly say that giving a note of the purchaser for goods is not payment. The note of a third person is payment, if expressly received as such, but the note of the purchaser is a mere security or evidence of the debt, and of the term of credit given. Nor can I find any reason for holding that taking the contractor's note deprives the laborer or material man of the benefits of the Act in question, if such note be not paid. No reason was suggested by the defendant's counsel. The debt still subsists. It is for labor or materials as truly as if no note had been given. The defendant has not been led by reason of the existence of the note to place himself in any worse position than he would have been in had the matter remained a charge upon book account at the same period of credit.

Finally, the defendant insists that the plaintiff having given to Henry (the contractor) a credit of two months, from December, 3 1851, (the date of the note,) could not obtain a lien by filing a notice of claim with the county clerk before the term of credit expired; and that the notice of claim having in this case been filed on the 19th January, 1852, the whole proceeding fails.

I am not aware that this precise point has before been raised. In the cases above referred to we have held that the claimant might file his claim, although nothing was at that time due from the owner to the contractor, and so acquire a lien, which might avail to reach moneys thereafter becoming due from the owner. I incline to think that the same construction should be given to the Act when applied to the debt for which the lien is sought to be created, and that as soon as the work is done, or the materials are furnished, the claim may be filed and a lien secured, and yet the question is not free from difficulty.

It is obvious that the lien cannot be enforced until the money is due. The legislature never intended that the party should, by means of the proceeding authorized by this Act, collect payment for his labor or materials before it became payable by the terms of service or sale. If the claimant has voluntarily given credit for his goods or his labor, he must clearly wait till the credit has expired before he can compel payment. This also appears from the language of the 5th section, which requires him when he commences his action to serve on the owner a bill of particulars of the amount claimed to be due. Suppose, then, having given a credit of three months, and filed his claim for the purpose of obtaining a lien by way of security, he receives immediate notice from the owner requiring him to commence an action for the enforcement of the lien, as contemplated by section 4 of article 11 of the Act. If he receives such notice, he must commence his action, or his lien is lost; and if he do commence his action shall he be defeated because his claim has not yet become payable by the terms of his own contract? Or shall it be said that the owner by giving him the notice waives the objection that the term of the credit has not expired, and by his own act is estopped to set up any such defence? A like difficulty is suggested in the opinion in Doughty vs. Devlin, as applying to a case in which a lien is created before the moneys become payable from the owner according to the terms of his agreement with the contractor.

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Brooklyn City Court.-Robert Bage agt. O. A. Millard, James L. Millard & L. Millard. But the sixth section of the statute in terms says "within six months after the performance of the work" &c., the notice shall be filed, i. e., as I think, at any time within six months. Without deciding now what would be the effect of a notice given by the owner requiring him to commence his action before the term of credit has expired, it seems to me that we best accomplish the design of the Legislature by holding, that if within six months after the performance of the work, etc., he files his claim, and after the term of credit has expired he commences his action, his lien may be enforced, unless the term of credit was so long that the lien expired by the limitation which the statute has affixed to it, viz twelve months, (section 11, subdiv. 3,) or unless the steps taken by the owner, while the credit was running, have defeated it.

Such a holding disposes of the objection raised in the present case, and if the question is raised hereafter in a case in which the claimant has voluntarily given a credit so long that he cannot avail himself of the benefits of the statute, his failure will be the consequence of his own voluntary act.

The difficulties above suggested confirm me in the opinion often expressed, that the foreclosure contemplated by the statute is an equitable proceeding, in which the powers of the court, as a court of equity, are peculiarly invoked to mould the remedy so as to suit the circumstances of each case, that the beneficial purposes of the act may be accomplished, and yet justice be done to all parties, without altering the contracts they have made among themselves.

The motion for a new trial must therefore be denied with costs.

Brooklyn City Court,

Before Mr. Justice GREENWOOD.

ROBERT BAGE vs. A. O. MILLARD, JAMES L. MILLARD and L. MILLARD.

ACTION FOR SPECIFIC PERFORMANCE.

A contract contained a stipulation that if the purchaser should not perform the contract he should forfeit and pay $500. Held that this was merely a penalty and not in the nature of a defeasance, and that there was a mutuality in the contract, notwithstanding this con

tract.

Where the vendor of real estate who covenanted to sell the fee had only a life estate, as tenant by the courtesy, the title in fee being in his infant children, subject to such life estate. Held that a complete performance of the contract could not be directed.

It appearing that the state of the title was known to the purchaser and his legal adviser when the contract was made, and that they did not stipulate for a partial performance of the contract. Held that the court would not decree a partial performance by directing a conveyance by the adult defendant of his real estate.

Held also, that inasmuch as a conveyance by their father of his interest would injuriously affect the interests of the infant defeudants, such conveyance would not be ordered. The infant defendants were not proper or necessary parties; and, as to them, the complaint was dismissed with costs.

The purchaser has an equitable lien in the vendor's interest for the portion of the purchase money already paid, and may proceed in the action for its recovery and for damages.

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THE NEW YORK LEGAL OBSERVER.

Brooklyn City Court.-Robert Bage agt. O. A. Millard, James L. Millard & L. Millard.

The facts are sufficiently stated in the opinion of the court.

J. M. Van Cott, for plaintiff.

Wm. Curtis Noyes and Dan Marvin, for defendants.

GREENWOOD, City Judge.-This is an action brought by a purchaser to compel the specific performance of a contract for the sale of land.

The price was to be $32,000, of which $1,000 was payable and paid at the signing of the agreement, and the residue was to be paid and secured when the deed was delivered; $500 of the first payment was to be forfeited by the purchaser if he failed to fulfil the contract. The seller, although he agreed to sell the fee, owned only a life estate as tenant by the courtesy, the fee belonging to his two infant children. The seller and his two children are made defendants.

Two questions have been made-1st, Whether there is the necessary mutuality in the agreement? 2d, If there is, whether this is a case in which a specific performance in whole or in part should be ordered? As to the first, it is contended that the provision for the forfeiture by the purchaser of $500, in the event of his failure to fulfil the contract, amounts to a defeasance, and that the purchase could not be enforced upon him. I think otherwise. The seller never agreed that the purchase should be considered at an end. The provision referred to is a mere penalty in terrorem added to the purchaser's undertaking, to induce a punctual and faithful performance on his part. The words "as liquidated damages" make no difference. Whatever might be the effect of this clause in limiting the extent of a recovery in damages in an action brought by the vendor, it does not, I think, extinguish the obligation of purchase so as to affect the question of specific performance.

As to the second question, it is evident that a complete specific performance cannot be directed. A deed to be executed by the adult defendant, A. O. Millard, will not answer the purpose, and he could not with propriety be required to procure the order of a court of competent jurisdiction authorizing the sale and conveyance to the plaintiff, at the price agreed upon, of the title in fee which is vested in his infant children, for no court would, under the circumstances, grant the order, the land having risen greatly in value. Besides, it would be a novel proceeding to adjudge a specific performance which would involve the necessity of a decision of another tribunal.

Then is this a case for a judgment for performance of the contract, as far as the defendant, A. O. Millard, can perform it? It appears to be the rule in equity that where the purchaser at the time of the contract knows of the limited interest of the vender, he will not be permitted to insist upon a conveyance of such interest, with compensation for the residue. 2 White & Tudor's Leading Cases, 24, and cases cited, and see this qualification stated by the Vice Chancellor, in Northrop vs. Holgate, in 1 Collier's Rep., 28 Eng. Ch. Rep., at page 223, and in Thomas vs. Deering, 1 Keen, 728; see also, Sainsbury vs. Jones, 2 Beavan, 17 Eng. Ch. Rep., 2 part, 464, sub. In the present case the seller did not

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It

Brooklyn City Court.-Robert Bage agt. O. A. Millard, James L. Millard & L. Millard. represent the property to be his own, but made the agreement, as appears from its face, for himself and his children; and before it was signed, the nature of the interest of the children, and the necessity of an application to a court for authority to sell, were stated to both the agent and legal advisor of the purchaser. The reason of the rule to which I have referred, I suppose to be, that the court will not countenance any party in making a contract with another, which he knows the latter has not the ability to perform, and also that under such circumstances the parties should have provided for a part performance in express terms, if such a performance was desired and intended. Here the intention of the parties, as to the interest of the infants, no doubt was, that the seller, their father, should, in the interval which was to elapse between the signing of the agreement and the delivery of the deed, apply for and obtain the authority of a competent court to sell through the instrumentality of a guardian; and it was supposed that the seller would himself be appointed such guardian. How far he was in fault, if at all, in not carrying out the agreement in this respect, it is not necessary now to determine. It is due to him, however, to state that it appears from the evidence that he made efforts (and there is no reason for believing that they were not made in good faith) to obtain security; and, also, that he bought in an outstanding lease of part of the premises. also appears that, when the plaintiff proposed furnishing the required security, the property had risen so much in value, that no court would probably have affirmed the sale of the infants' interest at the rate agreed upon by their father. It is contended, however, by the plaintiff's counsel, that the seller should have made up the difference; that he had contracted to convey the land; that it was his misfortune, at least, that he could not obtain secnrity; and that every one is to bear the consequences of his own misfortunes. If we assume this to be so, the remark applies rather to the question of damages than to that of the propriety of enforcing specific execution of this agreement. As to the latter, the plaintiff knew that the seller could not undertake absolutely to convey the property to him. It was necessary that the contract should be confirmed by the court after the appointment of a guardian should have been made; and security, also, was required, to a large amount; and that all the plaintiff could have expected, or had a right to expect, was, that the seller should do all in his power to enable himself to convey the land. It was going too far to enter under such circumstances into an agreement by which the land was to be absolutely sold and conveyed. I may add, too, in this place, that if any question exists as to mutuality, it arises from the consideration that the seller did not contemplate, as the plaintiff well knew, the ability to convey, in his own right, the fee of the land, as he had agreed to do.

In

But there is another principle applicable to the present case. Thomas vs. Deering, Ub. Sup., (referred to also in 2 White and Tudor's Leading Cas. 25,) a tenant for life without impeachment of waste, with remainder to his sons in tail, contracted to sell in fee, which he could not do, and the purchaser filed a bill asking to have a conveyance of his life estate, and reversion in fee, subject to the estate tail; but the Court