Ferris v. . Spooner, Etc.

Danforth, J. The appeal to this court is by Spooner as assignee. In substance he contends that the action is premature—that he might within the ninety days limitation go on with the contract, and at any rate that the plaintiff could not have payment or foreclosure until it expired. - But the plaintiff’s agreement to advance money and his promise to delay foreclosure were both dependent upon the undertaking of Coggeshall to erect the houses; when,- therefore, he repudiated the further performance of the contract, the plaintiff was discharged from all obligation to do either and set at liberty to enforce ■ his securities for the money already advanced. (Hochster v. De La Tour, 2 E. & B. 678.) A previous demand of payment was not essential to a cause of action. (Gillett v. Balcolm, 6 Barb. 370.) The appellant’s position is no better than that of his assignor, and the other points made by him seem to us unimportant. We think the judgment was right and should be affirmed. All concur. Judgment affirmed.