Vassault v. Edwards

By the Court,

Rhodes, J.: The alleged contract, which the plaintiff seeks to have specifically performed, is set out in the complaint. It is therein recited that the defendant had sold to the plaintiff the premises in controversy for the price of four thousand five hundred dollars, and had received fifty dollars in part payment; and the contract then proceeds as follows: “ This sale is subject to a search of, and approval of, the title; and if the title is rejected or bad I agree to refund to said Vassault the fifty dollars paid on account; but if the title be approved I agree to convey the above premises to said Vassault, or his assigns, by a good and sufficient grant, bargain, and sale deed, on receiving the balance of the purchase money as above. And I hereby allow to said Vassault twenty (20) days for the examination of the title.” It is signed by the defendant alone. The complaint alleges that the plaintiff paid the fifty dollars mentioned in the contract; that within the twenty days mentioned in the contract he examined the defendant’s title to the lot, and found it defective in this, that the property had been sold to the defendant at a sale made under the order of the Probate Court; that the sale had been confirmed, and the administrator ordered to execute a deed, but that, in fact, no deed had been executed. It is further alleged that upon those facts being communicated to the defendant, he agreed to take the proper proceedings to obtain said deed, and “ did extend the time mentioned in the agreement herein first above recited, for the purpose of completing said sale;” that the Probate Court subsequently ordered the administrator to execute a deed of the lot to the defendant; that thereupon the plaintiff did accept the title of the defendant, and so [462]notified him, requested him to execute a deed, and tendered him the balance of the purchase money; but that the defendant refused, and still refuses to execute the deed. The demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, was sustained, and the plaintiff failing to amend, final judgment was rendered for the defendant.

There is a discrepancy between the copy of the alleged contract, as contained in the transcript, and that which is set out in the plaintiff’s brief. In the transcript the words are, “and if the title is rejected or bad;” while in the plaintiff’s brief they are, “and if the title is rejected as bad.” The defendant’s brief leaves the matter in uncertainty, and we shall accept as correct the copy in the transcript. It is not material, however, to the questions which will be discussed, whether the reading in the transcript or in the plaintiff’s brief is the correct one. The matter is alluded to for the purpose of saying that it is the duty of counsel to have clerical and typographical errors in the transcript, which are material, corrected, and that they must see to it that the corrections are made in all the copies filed with the Cleric.