four notes, of ten thousand dollars each, due two, three, four, and five years from date, '.:1
The bill and !aD;sweI,' sh9W W,Cll:,t!lY, at whose request this suit is, brought, holds and owns all the notes but that ?f bY;,'Samlfel :.A,-. The has l'Weq, .pald as It ':the up an agreement with Worth,y and to extend the time of the two fimt notes'oneyeal',which,twith authority to make it, as to the one held by Mrs. Worthy, is denied by her. A motion for a I,'eceiver has now been heard onbill,answer, and affidavits.". ' The alleged agreement to extend time. is relied upon to defeat the was s-qch before motion for a receiver. If condition broken,. to extend the time beyond when the bill ",as brought, it 'Illight save the ,l;lreach upon which ihe bilI is fOlwded. But no agio'eement to extetldany definite tinie appears,or is claimed to have been made, before th.e ,first two. notes fell.,l,lue.. rhere was talk about it 'before, and coi'l'eSp<mdence'F\f'ter, 'Which; however, appear to have .never amounted 'td' morefliail a loose understanding that paymentmight then be deferred, tititnot for any 'definite time. This would 'iI'6f devest the right oferitry accrued by the breach of .. 'Authority, to make condition, nor,:bar proceediifgs' bf such an agl'eement 'to 'be, shown, beyond the relation of attorney and cHeIif, which is not only fi<WshOwn, 'but the want of iUs made to appear. ,,' . The option tollave 'the' whole debt become due oti'default of part was attempted 'to be after the next installment of interest was paid, and after tliis.suit .was begUn., :, Question has been made in whether the attempt, was seasonable. ,That' question is not materiaJ,however, on this tnotion;!for the orator had the right to enter upon the mortgaged. premises and propertY,and,take the rents and I)l·ofitsto. apply-on' the debt, and to have a receiver th*,t upon any breach condition, according to thl:l oftherp,ortgage. questiop. m,ayproperly arise when payment of that part of the debt is reached in the course of the proceedings. .... By the ferllls of the m0l'tga,ge,. the had, ,right to the possession and ,control of the and "to qU:trry and sell marble therefrom, and carry on,the business," in the. ordinary way, so longas the conditions of the mortgage shl)uld be performed. Question is also in,adewhether. the m()rtgage C,OVer!! quarried by tht) mortgagor in posses'sion.. ''J,'he, words, ."all and ,singular the real and personal property of the said Florentine Marble Oompany, in the state of Vermont, which it noW owns,or which'it may hereoWJ,l.,iJi connectionwitp:the operation of.its,b]l'slnel;lS," would l3e<:m broad' enough to coy.e(fu\s marble, if tripOn it. The other property could be mortgaged,mostly or wholly"as, real estate could. V. S. ·§2269.This .wouldbe personal property, but a mortbe vali'd against the mortgage of it as if .real gagor; and, with possesSion, agaiJ:j.st all: Section 2252. 'The temporary receiver appointed on consent is understood to be now in
LYNCH V. WRIGHT.
possession of the property, with the rest, which would perhaps be suffieient. This possession should be continued, but without prejudice to the rights of the defendant in ,any proceeding concerning it that may be ad vised: The answer sets up the want of Mrs. Worthy as a party as an objection to the bill; but as the plaintiff is the mortgagee, and by the terms of the mortgage autl?-orized on application of any holder of any of the notes to take possession, and to file a bill in his own name, this objection does not now seem to be in any wise well founded. Temporary receiver till further order.
LYNCH v. WRIGHT. (Circuit Court,S. D. New York. June 10, :).899.)
On the breach of .acontract for the sale of real estate, special damages resulting to the. purchaser from the failure to make a resale are only .recoverable where the contract for resale was brought to the knowledge of the defendant, and by reason of such knowledge he impliedly undertook, in case of his failure, to make conveyance to pay such special damages by way of indemnity.
TO SELL REAL - ESTATE-RENTS AND
2, SPECIFIC PERFORMANCE-CONTRACT PROFITS-IN'fEHEST.
On a decree for the specific performance of a contract to convey real estate at suit of the purchaser, he may elect to pay interest on the purchase money since the time the conveyance should have been made, and take the rents and profits ,receiyedby the defendant, or to allow the defendant to retain,such rents and profits, in which case he will ,be exempted from payment of interest. Where residence property has been allowed by the defendant to remain unoccupied during the' pendency of a suit by a purchaser to enforce a specific performance of a contract for its sale, in consequence of which itdeteriorates in condition, the complainant ,is entitled on a .decree in his favor to an allowance for such deterioration.
FOR DE,TERIORATION OF PROPERTY.
This was a suit in equity for the specific performance of a contract to convey real estate and to recover damages for its breach. Abram Kling, for complainant. Olcott & Olcott and Geo. N. }fessiter, for defendant. TOWNSEND, District Judge. '!'his case was argued at final hearing upon the following stipulation:
"That a decree directing specific performance, as prayed in the complaint, be entered herein, and that if, in the opinion of the court, after the examination of the record herein, the complainant shall be entitled to any costs, damages, or compensation herein, by reason of any acts of defendant, such costs, damages, or compensation may be by the court upon the testimony, properly admissible, now before the court, without prejudice to the right of either party to appeal."
The sole questiop., then, is as to the amount of damages, if aDY, to which the complainant is entitled. On April 27, 1896, the defendant agn"ed to sell his house to complainant for $11,000,-$20e cash on execution of contract, and $10,800 on delivery of deed