The pleadings are not before us; and we presume that they are NEW-YORK, sufficient to let in this defence, if at all admissible. The defendant is, accordingly, entitled to judgment.

Judgment for the defendant.

May, 1818. HASBROUCK

V.

TAPPEN.

HASBROUCK against TAPPEN.

In an agiee

ment for the sale

vendor cove

by the 1st of

of the vendor's

was,

some

THIS was an action of covenant. The declaration stated an agreement made between the plaintiff and defendant, on the and conveyance 25th of November, 1815, by which the defendant agreed, on the of land, the first day of January next thereafter, by a good and sufficient nanted to conwarranty deed, free of all encumbrances, to sell and convey vey the land, to the plaintiff, his heirs, and assigns, a certain *lot of land in [* 201 ] the town of Kingston, which was to be surveyed; and the plain- surveyed, free of tiff agreed to pay to the defendant, on the delivery of the deed, encumbrances, 1,250 dollars, by his bond, payable, without interest, on the first January. The day of May next, after the date of the agreement; and in case land was not surveyed in of failure of the parties to the agreement, they thereby bound time, and the themselves, each unto the other, in the sum of 500 dollars, vendee declared which they consented to fix and liquidate, as the amount of dam- take no advanages to be paid by the failing party, for his non-performance, tage on account to the other. The plaintiff averred that he had always been not conveying ready to pay the defendant in the manner mentioned in the on the precise day mentioned agreement, and assigned for breach, that the defendant did not, in the agree on the first of January, or at any time since, by a good and ment. The land sufficient warranty deed, free of all encumbrances, sell and months convey, &c. The defendant pleaded non est factum, with no- wards, surveytice of special matter to be given in evidence. The cause was dee refused to tried before Mr. Ch. J. Thompson, at the Ulster circuit, in 1817. accept a conThe plaintiff, at the trial, having proved the agreement, the cause it was endefendant produced as a witness, a surveyor, who testified that he cumbered, was employed, in December, 1815, by the parties, to survey the fact. land; that on account of bad weather he did not make the sur- held, that the vendee, by en vey at the appointed day, and that in the same month he had a larging the time, conversation with the plaintiff, in which the witness told him did not waive that he had been informed by the defendant, that the survey cover must be done by the 1st of January; to which the plaintiff re- which fixed and liquiplied, that it was immaterial as to the day, and that if the de- dated by the fendant performed his contract, he would take no advantage, agreement, on account of his not doing it on the precise day mentioned in damages to be paid by the par ty failing performance, even admitting that his consent to extend the time amounted to an agreement; for such subsequent agreement, by parol, was void by the statute of frauds, and could not alter, revoke, or modify the previous valid contract. (a)

after

ed, but the ven

veyance, be

which was the

It was

his right to re

a sum

was

as

the amount of

(a) Vide Dubois v. Del. & Hudson Canal Co. 4 Wendell's Rep. 235. Jewell v. Schroeppel, 4 Cow Rep. 564.

V.

TAPPEN.

NEW-YORK, the agreement. The land was not surveyed until May, 1816, May, 1818. when the survey was made in the presence of the parties, without HASBROUCK any objection on the part of the plaintiff. The defendant, afterwards, offered to execute a deed; but the plaintiff declined accepting it, on the ground that the premises were encumbered, and at the trial produced the record of a mortgage, which had become forfeited, executed by the plaintiff, including these premises with other land, and conditioned for the payment of 2,672 dollars and 16 cents; and another mortgage on the premises, also forfeited, conditioned for the payment of 226 dollars.

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[* 203 ]

The defendant's counsel insisted that the plaintiff ought not to recover the stipulated damages mentioned in the agreement; because the plaintiff's waiver of the time of performing the agreement, until after the 1st of January, amounted, in law, to a waiver of those damages; but the chief justice charged the jury, that the plaintiff' was entitled to recover the damages stipulated for the non-performance of the agreement; and the jury, accordingly, found a verdict for the plaintiff, for 500 dollars damages. The defendant tendered a bill of exceptions to the opinion of the chief justice.

Champlin, for the defendant, contended, that the plaintiff, by agreeing to extend the time of performance, had waived the penalty, and could recover only the actual damages which he had sustained by the non-performance. He cited Astley v. Weldon, 2 Bos. & Pull. 346. Brown v. Goodman, cited in Littler v. Holland, 3 Term Rep. 592. n. Thresh v. Rake, 1 Esp. N. P. Rep. 53. Phillips v. Rose, 8 Johns. Rep. 392. Freeman v. Adams, 9 Johns. Rep. 115.

C. Ruggles, contro, insisted that the 500 dollars were to be considered as stipulated damages. (Dennis v. Cummins, 3 Johns. Cas. 297. and note.) In Keating v. Price, (1 Johns. Cas. 22.) the Court admitted evidence of a parol agreement to enlarge the time of performing a written contract. (Fleming v. Gilbert, 3 Johns. Rep. 528.) But in these cases, the contract was of that nature, that, if it had been originally by parol, it would have been valid. Here the parol agreement must be void, by the statute of frauds, and so could be no modification of the original contract.

THOMPSON, Ch. J., delivered the opinion of the Court.

This case comes before the Court on a bill of exceptions taken at the trial. It was an action of covenant, to recover five hundred dollars, as stipulated damages agreed on between the parties, to secure the performance of certain covenants contained in an agreement of the 25th of November, 1815. There was no question upon the trial, but that it was a case of stipulated damages. The agreement, with respect to that, is too explicit to admit of any doubt. The parties bound themselves to each

May, 1818.

HASBROUCK

V.

ΤΑΡΡΕΝ

other in the sum of five hundred dollars, which, in the language NEW-YORK, of the covenant, they consented to fix and liquidate as the amount of damages to be paid by the failing party, for his nonperformance, to the other. The evidence, as appearing on the bill of exceptions, shows that the plaintiff was always ready, and did every thing on his part required by the agreement; and that the defendant did not, and could not, perform, on his part, by reason of certain encumbrances on the land which he had covenanted to convey to the plaintiff,

The only question upon the trial was, whether the plaintiff had not waived the stipulated damages, by the indulgence he had given to the defendant. By the covenant, it appears that the deed was to be given by the first day of January next after the date of the agreement. The evidence shows, that the defendant, finding some difficulty in having the necessary survey made in season, his surveyor had a conversation with the plaintiff on the subject, when the plaintiff said, that it was immaterial as to the day; that if the defendant performed his contract, he would take no advantage, on account of his not doing it on the precise day mentioned in the agreement. No advantage was taken; for the plaintiff was always willing to accept the deed, and perform, on his part. But the defendant was unable to comply with his covenant, and convey the land, free from encumbrances. He comes now, with a very ill grace, to set up this indulgence given him, to discharge himself from his covenant. It is a sound principle, that he who prevents a thing being done, shall not avail himself of the non-performance he has occasioned; so that if, by the covenant, any act was to have been done by the plaintiff, before the conveyance was to be made, the defendant's conduct would have dispensed with the performance. But no such act was required. We have no oyer of the covenant, but, according to the declaration, the covenants were independent; or, at all events, nothing is required to be done by the plaintiff, until the delivery of the deed. He has averred his readiness to perform on his part, and this is fully shown by the proof. Even admitting that an agreement to extend the time of performance would be a waiver of the stipulated damages, there was not, in fact, any such agreement. Nothing ever passed between the parties on the subject. All that the plaintiff ever said, as to the extension of the term, was, that if the defendant would perform his contract, he would take no advantage of its not being done on the precise day. This could not be called an agreement to extend the time: no day was fixed, to which the performance was postponed; and it would be a violent and unnatural construction of the plaintiff's conduct, to consider it as intended to waive his covenant, and enter into a new agreement, especially as such parol agreement would be void under the statute of frauds. If this is to be considered a new agreement, which in any manner affects the covenant, the plaintiff's whole remedy is gone. He can no more VOL. XV. 161

21

[ * 204 ]

PETERSON

V.

CLARK.

NEW-YORK, sustain an action for his real damages to be proved, than he can May, 1818. for the stipulated damages; and this was not pretended on the trial. An agreement, absolutely void, can never be considered as altering, revoking, or modifying, a valid contract. In all the cases referred to, where the term has been extended, the subject matter was such as might be embraced by a parol agreement, and the parties have been driven to the new contract for redress; but when the new contract is void in law, and the party without remedy if turned over to it, it would be extremely unjust. Nor was it contended, on the trial, that the plaintiff's remedy was on the new agreement. That forms no part of the objection to the recovery, as stated in the bill of exceptions. It is placed entirely on the ground, that an extension of the time is a waiver of the stipulated damages only. But the mere extension of the time of performance is not a waiver of any thing. This principle is settled by the case of Evans v. Thompson, (5 East, 193.) where it was held, that the time for making the award, being enlarged by agreement, did not dispense with the stipulation to make the submission a rule of Court. The Court said, the agreement to enlarge the time must be understood as by reference virtually incorporating in itself all the antecedent agreement between *the parties, relative to that subject, as if the same had been formally set forth and repeated therein. In every point of view, therefore, in which this case can be viewed, the plaintiff is clearly entitled to judgment.

[* 205 ]

Judgment for the plaintiff.

Where land is conveyed absolutely, and the grantee, by

strument, or de

PETERSON against CLARK.

IN ERROR, to the Court of Common Pleas of the county of Madison.

The defendant in error, who was the plaintiff in the Court a separate in- below, brought an action on the case, in the nature of an action feasance, cove of waste, against the plaintiff in error, the defendant in the nants to re-con- Court below. The declaration stated, that the plaintiff below vey to the grantor on his pay- was, on the 1st of October, 1816, seised in his demesne, as of ing a certain fee, in certain lands and tenements, whereof the defendant was

sum of money,

the transaction

amounts only to a mortgage. (a)

A mortgagee cannot maintain an action of waste against the mortgagor, at least until after a forfeiture of the mortgage.

And he has no property in trees cut down by the mortgagor, so as to maintain trover against him.

A person having an expectant interest in land, less than the inheritance, cannot maintain an action for waste. (b)

(a) Vide Brown v. Dean, 3 Wendell's Rep. 208. Lane v. Shears, 1 lbid. 433.

Roosevelt v. Heirs

of Fulton, 7 Cow. Rep. 71. Dickinson v. Clark, 6 Ibid, 147. James v. Macy, 2 Cow. Rep. 246. Clark v. Henry, Ibid. 324.

(b) Vide Lane v. Hitchcock, 14 Johns. Rep. 213.

May, 1818.
PETERSON

V.

CLARK.

in the possession and occupation, and that divers timber- NEW-YORK, trees, &c., were growing on the said lands and tenements, and parcel of the freehold and inheritance thereof, and that the defendant cut down and destroyed divers timber-trees, &c., and converted them to his own use. To this was added a count in trover for the conversion of one hundred pine-trees, one hundred oak-trees, &c., of the plaintiff. The defendant pleaded the general issue, and three special pleas, in which he alleged himself to be seised in fee of the premises, and denied the seisin of the plaintiff. The plaintiff replied, taking issue on the special pleas. The cause was tried at the June term, 1817, of the Court below.

At the trial, the plaintiff gave in evidence a patent issued the 30th of November, 1811, to Isaac Van Camp, for lot No. 81, in the Canastola tract, in the county of Madison, which is the premises in question, and a deed with warranty, dated the 16th of August, 1815, for the same lot, from Van Camp to the plaintiff. A defeasance bearing even date with the *deed between the plaintiff of one part, and Van Camp of the other part, was then given in evidence. This defeasance recited the deed, and that Van Camp was indebted to the plaintiff in the sum of 433 dollars and 28 cents, to be paid, with lawful interest, by the 16th of August, 1817, and the plaintiff covenanted, on payment of the said sum of money, to re-deliver the patent and re-convey the land to Van Camp, and that, on such payment, the deed from Van Camp to the plaintiff should become void, and his estate in the land should cease. It was further covenanted, that Van Camp should continue in possession of the premises free of rent for the space of two years from the date of the instrument, and that he should not commit waste on the premises, except the cutting of five pine-trees, and the necessary wood for his fire and fences, and whatever buildings he should see fit to erect on the premises, &c. The instrument was executed by both the plaintiff and Van Camp. Van Camp, afterwards, by assignment bearing date the 22d of April, 1816, in consideration of 1,000 dollars, assigned the defeasance to the defendant below, and his heirs and assigns. The plaintiff then proved that the defendant was in possession of the lot under the defeasance and assignment, and that he had cut timber to the value of 100 dollars. The defendant's counsel objected to the plaintiff's right to recover in this form of action, (a) and also insisted that the action was prematurely brought; but the Court overruled the objections, and charged the jury in favor of the plaintiff, who, accordingly, found a verdict for the plaintiff for 100 dollars.

The defendant below tendered a bill of exceptions to the

(a) Notwithstanding a lease may contain a covenant against waste, the lessor has still an election to bring an action on the case for waste committed during the term. Kenlyside v. Thornton, W. Bl. Rep. 111. 2 Saund. 252, c.

[* 206]