Dishian v. Kishishian

FINCH, P. J.

Plaintiff sued to recover the amount of a promissory note given him by defendant. The defendant was given judgment for costs and plaintiff appeals.

February 16, 1921, plaintiff and defendant entered into an agreement by the terms of which the former agreed to sell certain real property to the latter for the sum of $10,250, as follows: “$1000 upon the execution of this agreement, the sum of $2000 on or before November 21, 1921, the payment of which shall be represented by a promissory note in the words and figures following”: Then follows a copy of the promissory note. The other deferred payments are not material here. The agreement made time of its essence and provided that upon failure of defendant to perform any of the terms and conditions thereof then the plaintiff might, “at his option, declare this agreement to be at an end and to be null and void and all payments theretofore made by the second party shall be retained by the first party as further consideration for the execution of this agreement and as compensation to the first party for the occupancy of the real property hereinbefore described.” The agreement provided that the defendant was to have immediate possession of the premises and to “continue such possession until the termination of this agreement by any default of the second party as hereinbefore provided, and

[442]

upon such termination the second party will yield peaceable possession of said real property unto the first party.” The defendant paid the $1,000 and gave his promissory note, payable November 21, 1921, as provided in the agreement and was given possession of the premises.

For some default of defendant, not shown by the record, the plaintiff seems to have canceled the agreement and, on the fourth day of November, 1921, brought an action of ejectment against defendant to recover the premises. The defendant duly filed his answer in that action, setting up the agreement and alleging that he had performed all the covenants thereof and was ready, able, and willing to pay said promissory note. January 28, 1922, plaintiff was given judgment restoring him to the possession of the premises.

Immediately after the execution of the promissory note plaintiff indorsed and assigned the same to one Davidian, who took the same as an innocent purchaser for value. December 12, 1921, Davidian commenced an action against plaintiff and defendant herein for the amount due on the note. January 16, 1922, plaintiff herein made a settlement with Davidian and took a reassignment of the note. Thereafter this action was commenced on the thirtieth day of January, 1922.