Price v. Manuel

FINCH, P. J.

The complaint alleges that the “defendant is indebted to the plaintiff in the sum of two thousand five hundred and fifty dollars . . . for so much money had and received by said defendant to and for plaintiff’s use,” and that the plaintiff had demanded payment thereof, but that the defendant refused to make such payment. The answer denies the allegations of the complaint. The trial court instructed the jury to return a verdict in favor of the defend

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ant and, upon the verdict so returned, judgment was entered in favor of defendant for his costs of suit. Plaintiff has appealed from the judgment.

In September, 1921, the parties entered into an agreement, by the terms of which the defendant, as party of the first part, agreed to sell an apartment house to the plaintiff for $180,000, payment of $50,000 to be made January 2', 1922, and $130,000 a year later, interest at the rate of six per cent per annum to be paid on the $130,000 from October 1, 1921. The agreement contained the following paragraph:

“It is further agreed that upon and in the event of the consummation of said sale, to-wit, on the 2d day of January, 1922, the party of the second part shall be regarded as if he had been the tenant of said Como Apartments from the 1st day of October, 1921, to the 1st day of January, 1922, for the following purposes, to-wit: the party of the first part shall pay the net income he has received from said property from October 1, 1921, to January 1, 1922, to said party of the second

part;

and said party of the second part shall pay to said party of the first part the sum of $4,500, of which sum the sum of $1,950 shall be regarded as rent paid for said premises from October 1, 1921, to January 1, 1922, but nevertheless shall then be applied in payment of interest on said note for $130,000 accruing from October 1, 1921, to January 1, 1922, and the remainder of said sum, to-wit, $2,550 shall be the consideration paid by the party of the second part to the party of the first part for entering into this agreement. ”

Plaintiff sought to recover on the theory that the provision in the agreement that “$2,550 shall be the consideration paid by the party of the second part to the party of the first part for entering into this agreement” was inserted therein by fraud or mistake and that the real agreement between the parties was that such sum was to be applied as payment upon the principal. Plaintiff testified that he did not know that the agreement contained that provision at the time of its execution. He further testified as follows: “I understood when I entered into the agreement with Mr. Manuel that he was to receive $4,500 out of the income for the last three months of the year 1921. He was to receive $4,500 for three months, $650 to be interest on the $130,000 a month and $850 to be credited on my note as principal, ... I was to have all