Citations
- 28 A.D. 109
Full opinion text
Rumsey, J.:
Upon the former appeal it was held that if the plaintiffs were acting as .attorneys for the defendants it was their duty to obey the defendants’ instructions, and, when requested, they should have omitted the receiver’s clause which they put into the mortgage, and if they were acting for Harbeck it was their duty to disclose that fact to the defendants; and if, omitting that duty, they were not able to procure the policy of insurance because they followed Harbeck’s instructions, they had failed to perform their contract, and in either case they were not entitled to' recover. There is no question in this case as to the employment of the plaintiffs by the defendants, but it is established-by the evidence, as it was established upon the former trial, that, having been employed by the defendants to procure the policy of insurance, they insisted, at the' direction of Harbeck, in inserting in the mortgage the provision for the receiver against the instructions of the defendants, and that that insistence was the reason, why the policy of insurance was not obtained and the loan not completed. The case is precisely, therefore, within the reasoning of the former decision, and it must be affirmed upon its authority. (Richards v. Washburn, 14 App. Div. 237.)
The judgment must be affirmed, with costs,-
Van Brunt, P. J., Barrett, Patterson and McLaughlin, JJ., concurred.
Barrett, J. (concurring):
The plaintiffs’ contract with Mr. Washburn called for the procurement by them, for the defendants, of a policy of title insurance, as part of the services for which they were to receive the round sum of $110. They could only recover this sum upon showing that they had performed the services in- their entirety. They acknowledge that.they failed so far as this policy of insurance was concerned, but they insist that their failure in that particular was because of the defendants’ fault in not signing a mortgage which they had prepared for them. There was, however, no such fault on the defendants’ part for the reason that the mortgage which they drew was not an ordinary one, but was an oppressive instrument. The defendants were not called upon, nor should the plaintiffs have asked them, to sign it. It follows that the plaintiffs failed to' fully perform their contract, and their failure resulted from their own fault, not the defendants’. Having failed to show full performance, or any fact excusing full performance, their complaint was properly dismissed, and the judgment should, therefore, be affirmed, with costs.
Judgment affirmed, with costs.