said so-called reserve lien

no evidence to support or tending to sup-, cumulated and transferred by the Union Life port the finding that it "would not thereaf- to this company with the insurance, is considter accept and receive from him [the insured] interest payable annually in advance. This loan ered as having been loaned to you at 5 per cent. the premiums and annual dues thereafter may be repaid at your pleasure or allowed to under the terms of the original contract to stand until a settlement be made under the polbecome payable, except on condition that he icy, at which time it will be deducted from the proceeds. If repaid, it may be reborrowed as a would consent and agree to the placing of whole or in part at your pleasure. Item No. 2 * upon is intended in some measure to compensate the his said policy," or that the insured "was at company for deterioration of vitality occasionall times thereafter ready and willing to pay cal examination. This portion of the debt draws ed by the lapse of time since you passed a mediat the time the same became due the subse- no interest, and may stand against the policy quently accruing premiums and annual dues" until a settlement be made thereunder, being according to his original contract. The the deducted at that time, or it will be reduced or ory of the third paragraph of complaint is removed, if you pass a medical examination satisfactory to our medical department. On applithat the insured performed his contract un- cation, a local examiner will be designated, betil notified by the company that it would not fore whom you may appear for examination at accept further performance in accordance our expense. If the impairment lien be removed, with the original policy, and alleges his the reserve lien. If the impairment lien be not said pro rata credit will be applied to reduce readiness and willingness to fully perform on removed, all further premium payments will his part, and is based on that principle of be applied as made to reduce it. law that, where one party avows an inten- have written you thus fully, because I desire you to know the exact facts regarding your tion not to perform, it will excuse the other policy. from offering to perform his part of the contract. It has been held that an insurance company, by demanding more than it is entitled to receive, and notifying the insured that nothing but a compliance with the demand will be deemed performance, will excuse the latter from tendering the premium. Willcuts v. Northwestern Mut. Life Ins. Co., 31 Ind. 300, 312.

[8] But, before it can be said that a formal tender is waived, the tenderee must have placed himself in such position as would make a tender an unnecessary act. A formal technical tender is not dispensed with by a mere assertion, without more, of a lien or claim in excess of the actual amount due, for a tender of the proper sum might be accepted. Indiana, etc., Co. v. Jameson, 24 Ind. App. 8, 12, 56 N. E. 37; Hoyt v. Sprague, 61 Barb. (N. Y.) 497; 38 Cyc. 136. See, also, Indiana Life, etc., Co. v. Reed, 54

Ind. App. 450, 459, 103 N. E. 77.

[9] The only evidence on this branch of The case consists of certain letters from the appellant company to the insured, the material parts of which are as follows: On June 27, 1905, appellant wrote the insured as follows:

*

I

Under date of July 12, 1905, appellant wrote the insured as follows:

"Your esteemed favor of recent date, relating to policy No. 8166, is at hand and carefully noted. In reply will say that this policy is carried on a semiannual basis. The regular issued at your original age of 54, is $91.56, payFederal premium for a policy such as yours, able semiannually; the policy being for $3,000. This is the maximum premium which we reserve the right to collect on this policy. However, until further notice you have the privilege, if you desire, to continue your former Union premium of $58.50 semiannually, in which case the difference between the smaller and the larger premium will be charged against your policy annually until paid in cash, or until some other as a loan and draw 5 per cent. interest, payable settlement is made under the policy. If all premiums be paid in full to the date of death, the amount to be deducted from the face of the policy at this time would be approximately $2,500.

Under the principles of law above announc

ed, and in view of the express finding that after the receipt of the letters above referred to the insured applied for and was examined for the purpose of removing the so-called impairment lien, and that said lien was removed, can it be said that the evidence above set out warranted the inference that appellant "would not thereafter accept and receive from him [the insured] the premiums and annual dues thereafter under the terms of the original contract to become payable, except on condition that he would consent and agree to the placing of said so-called reserve lien * upon his said policy"? While the evidence is far from being conclusive, we 19 44 are of the opinion that such inference was $2,084 26 warranted. 91 56

"Dear Sir: Federal Policy No. 8166, Union No. 1719. I am pleased to make report as follows on the condition of said policy at the time of its transfer to the Federal Life Insurance Company:

(1) Amount of lien for reserve....
(2) Amount of lien for impairment..

Less pro rata credit on account of
assets transferred from the Union
Life to the Federal Life........

Net Impairment

(3) Federal premium for similar policy.... (4) Union Life premium....

$ 354 35
2,103 70

58 50

"The assessment clause' in your policy has been eliminated; your policy has been placed upon a legal reserve basis, and item No. 1 represents the reserve for the proper protection of this policy. This amount, not having been ac

Other questions are raised, but in our discussion we have disposed of the controlling ones, and further disposition is unnecessary. Finding no available error in the record, the judgment must be affirmed.

Judgment affirmed.

(222 N. Y. 347)

WOOLLEY et al. v. STEWART et al. (Court of Appeals of New York. Jan. 22, 1918.)

1. FRAUDS, STATUTE OF

119(1)—OPERATION AND EFFECT-RIGHTS OF PARTIES. Under Real Property Law (Consol. Laws, c. 50) § 242, under which an oral agreement to convey land is nugatory and unenforceable, a party to the agreement may legally and rightfully refuse to recognize or perform it, as the breach of a void agreement is not a fraud or a wrong in law.

2. FRAUDS, STATUTE OF ~129(3)—PART PER

FORMANCE-EFFECT.

A party to an oral agreement to convey land may withdraw himself from the policy and defense of the statute of frauds, or waive its protection by inducing or permitting, without remonstrance, another party to the agreement to do acts pursuant to and in reliance upon the agreement to such an extent, and so substantial in quality as to irremediably alter his situation and make the interposition of the statute against performance a fraud.

3. FRAUDS, STATUTE OF 129(12)—“PART PERFORMANCE" NECESSITY THAT ACTS BE REFERABLE TO CONTRACT.

In such case the acts must be so clear and certain and definite in their object and design as to refer to a complete and perfect agreement of which they are a part execution, and must be unequivocal in their character, and have reference to the carrying out of the agreement, and an act which admits of explanation without reference to the oral contract or a contract of the same general nature and purpose is not, in general, admitted to constitute a "part performance."

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Part Performance.]

4. EVIDENCE 271(16)-SELF-SERVING DECDECLARATIONS OF PERSONS

LARATIONS

SINCE DECEASED. In a suit for specific performance of an oral agreement by a grantee to reconvey to the grantor or such persons as he might designate, the deceased grantor's statements as to paying the taxes on the property and collecting the rents were self-serving and incompetent.

conveyed to him, and which the grantor attempted to dispose of by his will, where he appropriated the rents to his personal use, and, in an action to cancel the conveyance, alleged that the deed was for a valuable consideration and was intended to, and did, convey to him the entire title and estate both legal and equitable, his acts constituted a positive and open renunciation and repudiation of the trust, and set limitations running against a cause of action to enforce the trust.

8. LIMITATION OF ACTIONS 39(11)

AcTIONS NOT OTHERWISE PRESCRIBED ENFORCEMENT OF AGREEMENT TO RECONVEY.

An action for specific performance of an oral agreement by a grantee to hold the title in trust and convey it on demand to the grantor or any person designated by him was governed by Code Civ. Proc. § 388, prescribing a limitation of ten years for actions not otherwise specially prescribed.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by John H. Woolley, individually and as executor and trustee of Edward A. Woolley, deceased, and another, against Sarah E. Stewart, individually as executrix and trustee of Edward A. Wooley deceased, and as administratrix of Horatio S. Stewart, and others. From a judgment of the Appellate Division of the Supreme Court, Second Judicial Department (169 App. Div. 678, 155 N. Y. Supp. 169), reversing a judgment in favor of defendants, entered upon a dismissal of the complaint by the court on a trial at Special Term, and directing a judgment in favor of plaintiffs, the defendants, other than the Attorney General of the State of New York, appeal. Reversed, and judgment of the Special Term affirmed.

John Hill Morgan, of New York City, for appellants. A. F. Van Thun, Jr., of Brooklyn, for respondents.

COLLIN, J. The action is to compel the 5. APPEAL AND ERROR 931(6)-REVIEW-specific performance of an oral agreement on FINDINGS EVIDENCE.

In determining whether there is any evi- the part of Horatio S. Stewart to convey dence to sustain a finding of fact, incompetent real estate to Edward A. Woolley. The Spetestimony will be disregarded, and only that cial Term decided that the complaint should which is competent and probative considered. be dismissed upon the merits. The Appel6. FRAUDS, STATUTE OF 129(3) late Division reversed certain of the findings PERFORMANCE"-SUFFICIENCY. of fact and conclusions of law made by the Special Term, and the consequent judgment, made certain new findings of fact and conclusions of law, and adjudged that the oral agreement be performed and an accounting to the plaintiffs of the rents and profits of the real estate be had.

"PART Where a grantor paid a mortgage which the grantee had assumed, paid taxes and assessments on the property conveyed, received such rents as the grantee paid him, and complained to the grantee that he did not receive enough, this did not constitute such part performance of an alleged oral agreement by the grantee to reconvey, on demand, to the grantor or any person designated by him to authorize a court of equity to disregard the statute of frauds and compel performance of the oral agreement, as these acts did not create necessarily or naturally and reasonably the conclusion that the grantor had, or believed he had, the right to again acquire the title to, or possession of, the property. 7. LIMITATION OF ACTIONS 103(3)-TRUSTS

-REPUDIATION OF TRUST.

Assuming that under the will of a grantor naming the grantee as one of the executors and trustees, and the letters testamentary thereunder, the grantee accepted the office of trustee of an express trust with respect to the real estate

The complaint avers, and the Appellate Division found as a fact, that on February 16, 1878, Edward A. Woolley conveyed the real estate to Horatio S. Stewart upon the oral agreement that Stewart should hold the title to it in trust to convey it on demand of Woolley to himself or to any person or persons designated by him. The legal representatives of Woolley, who died in 1899, are seeking to enforce, through this action, the performance of the agreement on the part of

the legal representatives of Stewart, who died in 1908.

[1-3] An oral agreement to convey an estate or interest in real property, other than a lease for a term not exceeding one year, is nugatory and unenforceable. Real Property Law (Consol. Laws, c. 50), § 242. A party to the agreement may legally and rightfully refuse to recognize or perform it. The breach of a void agreement is not a fraud or a wrong in law. Levy v. Brush, 45 N. Y. 589. He may, however, withdraw himself from the policy and defense of the statute, or waive its protection, by inducing or permitting without remonstrance another party | to the agreement to do acts, pursuant to and in reliance upon the agreement, to such an extent and so substantial in quality as to irremediably alter his situation and make the interposition of the statute against performance a fraud. In such a case a court of equity acts upon the principle that not to give effect to those acts would be to allow the party permitting them to use the statute as an instrument defending deception and injustice. The acts must, however, be so clear, certain, and definite in their object and design as to refer to a complete and perfect agreement of which they are a part execution, must be unequivocal in their character, and must have reference to the carrying out of the agreement. An act which admits of explanation without reference to the alleged oral contract or a contract of the same general nature and purpose is not, in general, admitted to constitute a part performance. McKinley v. Hessen, 202 N. Y. 24, 95 N. E. 32; Wheeler v. Reynolds, 66 N. Y. 227; Canda v. Totten, 157 N. Y. 281, 51 N. E. 989. Because the acts in part performance are essential to the relevancy and enforceability of the oral agreement, it has been held that the

agreement cannot be proven until the acts which constitute the part performance of some contract to reconvey have been proven. Van Epps v. Redfield, 69 Conn. 104, 36 Atl. 1011; Pomeroy on Contracts (2d Ed.) §§ 107,

108.

"Q. Do you know whether or not he (Stewart) paid those rents (of this real estate), as he colYes, sir. lected them, over to Edward A. Woolley? A. * Q. Do you know who paid the taxes on the property on Raymond street and Fulton avenue? A. Yes, sir. Q. Who? A. all conversant with your father-in-law's busiEdward A. Woolley. * Q. Were you at ness? A. Only what he told me in my house. Q. I assume that your father-in-law, Edward A. Woolley, was the one who told you he paid the taxes on this property. A. So he told me. Q. Likewise about collecting the rents and Mr. Stewart paying them over to him? A. Yes, sir."

The record does not contain other evidence in regard to the acts of Edward A. We disregard the testimony stating the self-serving declarations of Edward A., because it was plainly incompetent, and in determining whether or not there was any evidence to sustain a finding of fact we may consider only that which is competent and probative. Giving this evidence its broadest meaning and effect, it states that Edward A. paid, March 1, 1880, the mortgage of $10,000, paid the taxes and assessments, received such rents as Stewart paid him, and complained to Stewart that he did not receive enough.

Those acts do not authorize a court of equity to disregard the imperative provisions of the statute and compel the performance of the alleged oral agreement. They do not create necessarily, or naturally and reasonably the conclusion that Edward A. had the right, or believed he had the right, to acquire again the title to and possession of the property. They do not establish an unjust and unconscientious loss and injury to him in case he did not have a reconveyance. They do not tend to prove that Edward A. had, at any time after February 16, 1878, the possession of or the right to possess the property; that he controlled, managed, or claimin regard to it; that he paid for any repairs or exercised authority or proprietorship

ed

or improvements or expended any money be of it, or that he claimed or owned any intercause of it, or collected anything on account telligence, upon being informed of the conest or estate in it. The person of ordinary in[4-6] In the instant case, Edward A. Wool- dominion of Stewart, and those acts of Edtents of the deed, the absolute possession and ley and his wife conveyed on February 16, ward A., might think that under an agree 1878, to Horatio S. Stewart, by a full covement subsequent to the deed Edward A. renant and warranty deed reciting a consider-leased Stewart from his assumption of the ation of $5,000 and other considerations and subject to a mortgage of $10,000 and all taxes and assessments, the real estate involved here. Stewart assumed the payment of the mortgage and taxes. The subsequent acts of Woolley in relation to the real estate were testified to by Ellen Woolley, the wife of George E. Woolley, a son of the grantors, as a witness in behalf of the plaintiffs. She testified that at a time, not fixed, subsequent to February 16, 1878, Stewart stated to her that Edward A. "paid the debts on" the real estate and said he (Woolley) did not get enough out of it. She was asked and an swered as follows:

mortgage and taxes, and, in return, received the net rents. He would not conclude that Edward A. was the owner and Stewart the mere holder of the naked legal title at the will of Edward A. Van Epps v. Redfield, 69 Conn. 104, 36 Atl. 1011; Cooley v. Lobdell, 153 N. Y. 596, 47 N. E. 783; Messiah Home for Children v. Rogers, 212 N. Y. 315, 106 N. E. 59; McKinley v. Hessen, 202 N. Y. 24, 95 N. E. 32; Freeman v. Freeman, 43 N. Y. 34, 3 Am. Rep. 657. The finding of the Appellate Division that the conveyance to Stewart was pursuant to the alleged oral agreement is immaterial; and the conclusion of law that the acts of Woolley were in performance and

sufficient to permit the evidence of the oral agreement is unsupported by the findings and erroneous as a matter of law.

should be reversed and that of the Special Term affirmed, with costs to appellants in the Appellate Division and this court,

HISCOCK, C. J., and CHASE, HOGAN, CRANE, and ANDREWS, JJ., concur. CARDOZO, J., concurs on last ground stated in opinion.

Judgment reversed, etc.

(222 N. Y. 337) LEARY et al. v. CITY OF WATERVLIET. (Court of Appeals of New York. Jan. 15, 1918.)

1. MUNICIPAL CORPORATIONS 360(6) — ExCAVATION OF ROCK-RECOVERY IN EXCESS OF BID PRICE.

[7, 8] The judgment of the Special Term is upheld, also, by the conclusion that this action is barred by the statute of limitations. We will assume for the purpose of the decision, and without considering or deciding the correctness of the proposition, that under the will of Edward A. Woolley, which was probated October 12, 1899, and the letters testamentary under it, which were issued to Stewart and others as the duly appointed executors and trustees, Stewart accepted the office of trustee of an express trust of which the real estate here involved was the corpus or subject. The record does not warrant a proposition more favorable to the plaintiff's. The findings disclose that from the death of Where a city's instructions to bidders for Edward A. on June 15, 1899, Stewart ap- the completion of dams, conduits, storm drains, etc., the plans and specifications of the work, propriated to his personal use the rents of and the bid showed that the contractors were rethe real estate, and that in an action in the quired to take all responsibility for the work and Supreme Court, instituted by George E. Wool- the amount of the several kinds thereof, the diffiley on February 6, 1900, against the execu-culties to be met with in doing the same, the exigencies of weather and floods, and changes tors and trustees under the will of Edward that might be made, causing an increase or deA. and Stewart to compel the cancellation of crease in the work to be done, while before the contract was let one of the contractors personalthe deed to Stewart of February 16, 1878, on the ground that its sole purpose was to allowly inspected the ground, and thereafter made his proposals, the contractors took all risks relating Stewart to hold the title to the real estate to the extent and amount of rock to be rewhile Edward A. retained his estate in fee, moved, and could not recover for removing a the complaint alleged that Stewart claimed number of cubic yards of rock in excess of the an estate in fee in the real estate, and the bid price for excavating rock as stated in the proposal and contract. answer of Stewart alleged that the deed was 2. MUNICIPAL CORPORATIONS 360(6) - REfor a valuable consideration, and was intendCOVERY FOR EXCESS EXCAVATION OF ROCK. ed to and did convey to him the entire title and estate, both legal and equitable, to and in the real estate. Those acts, which remained in force, constituted a positive and open renunciation and repudiation by Stewart of the trust, in so far as it related to the real estate, which matured the cause of action here and set the statute of limitations running against it. Spallholz v. Sheldon, 216 N. Y. 205, 110 N. E. 431, Ann. Cas. 1917C, 1017; Young v. Walker, 224 Mass. 491, 113 N. E. 363; Patterson v. Hewitt, 195 U. S. 309, 25 Sup. Ct. 35, 49 L. Ed. 214; Bruner v. Finley, 187 Pa. 389, 405, 41 Atl. 334. The statute applicable is section 388 of the Code of Civil Procedure:

"An action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues. Ford v. Clendenin, 215 N. Y. 10, 109 N. E. 124, Ann. Cas. 1917A, 658; Peters v. Delaplaine, 49 N. Y. 362; Cooley v. Lobdell, 153 N. Y. 596, 47 N. E. 783; Gilmore v. Ham, 142 N. Y. 1, 36 N. E. 826, 40 Am. St. Rep. 554.

This action was commenced November 9, 1912. Horatio S. Stewart died July 11, 1908, and through the 18 months thereafter the statute did not run. Code of Civil Procedure, § 403. The cause of action at bar accrued not later than February 26, 1900. Manifestly, the statute of limitations was a complete defense.

To entitle the contractors to recover, they were required to show that the city required them to excavate the excess rock as stated, despite their protest and claim that the excavation of such rock was not included in their contract. 3. MUNICIPAL CORPORATIONS 374(4) —— ExCAVATION OF EXCESS ROCK-SUFFICIENCY OF EVIDENCE.

Evidence held insufficient to show that the city required the contractors to excavate the excess rock as stated, despite their protest and claim that the excavation was not included in the contract.

Cardozo, J., dissenting in part.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by James F. Leary and Thomas F. Morrison against the city of Watervliet. From a judgment of the Appellate Division (178 App. Div. 938, 164 N. Y. Supp. 1099), affirming judgment for plaintiffs, defendant appeals. Judgment modified, and as modified affirmed.

Reargument denied 119 N. E.

Albert J. Danaher, of Albany, for appellant. William F. Lynn, of Rochester, for respondents.

CHASE, J. In 1913 the city of Watervliet by its sewer commission, appointed pursuant to chapter 457 of the Laws of 1911, advertised for sealed proposals for the completion of two dams, conduits, storm drains, and appurtenances pursuant to plans and specifica

The judgment of the Appellate Division tions on file in the office of the commission. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The plaintiffs bid in pursuance of said ad- mate by the commission of the work to be vertisement and in their bid said: