Charles Metz, Appellant, v. The Harbor and Suburban Building and Savings Association, Respondent.
Second Department,
March 1, 1907.
Vendor and purchaser—sale of lands to be paid for by installments — payment to agent contrary to contract.
When an executory contract for the sale of lands, the consideration to be paid in installments, provides that the vendor’s agents are “ not permitted to collect installments,” a vendee who has paid installments to the vendor’s agent, and who sues for specific performance of the contract, is not entitled to a judgment allowing him for the installments paid.
Appeal by the plaintiff, Charles Metz, from portions of an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 12th day of April, 1906, upon the decision of the court rendered after a trial at the Kings County Special Term.
Suit for specific performance of a contract to convey real property.
The contract price was $1,300 and the contract provided that payment should be made “ Fifty ($50) dollars upon execution and delivery of this contract, and fifteen ($15) dollars on account of the contract each and every month from the date thereof.”
After the signatures came a page for the entry of the installments as paid. It was headed as follows: “Payments on account of the within contract. Agents not permitted to collect instalments.”
After execution by the company the contract was delivered to the agent who made the sale for delivery to the purchaser. He delivered it and at the same time collected the $50. He received back the duplicate of the contract signed by the purchaser and kept it. Thereafter he collected 28 monthly installments and entered *826their receipt by him. on the contract page of the purchaser’s •duplicate.. It does not appear that the purchaser knew the- agent kept the other duplicate instead of turning it in.fb the defendant.. ‘ .
Clarence E. Sutherland, for the appellant.
Alexander S. Bacon, for the respondent.
Gaynor, J.:
The learned trial court in .decreeing specific performance only allowed the plaintiff on account of the purchase price the $50 paid-on delivery of the contract,, and this is why the plaintiff appeals. The judgment is correct, for the contract, when delivered gave notice to- the plaintiff that the' agent had no authority to collect the monthly installments. The defendant never waived this, ' Instead of returning-to the-defendant the duplicate gf the contract signed' . by the purchaser, the agent kept it without authority and collected and embezzled 28 installments in addition toz-the $50 paid dli the delivery. Besides, there wás no evidence of knowledge in the pur chaser that the agent had possession of the defendant’s duplicate when he collected the installments (Crane v. Gruenewald, 120 N. Y. 274).
The judgment, should be affirmed.
. Jeuks, Hooker, Rich and Miller, JJ., concurred.
Interlocutory judgment affirmed, with costs.