Selleck v. . Tallman

Per Curiam. It is not .disputed, and the judge before whom this ease was tried found among other things that at the time and place fixed by the contract the parties met, and the defendant produced a deed of the premises mentioned, executed by himself and wife, and dated February 19, 1879, but did not formally tender the same to the plaintiff; that it was • then and there claimed on behalf of the defendant, through his agent .and counsel, that the true construction of the contract was. that the interest should b¿ paid on the whole purchase-money from February 19th, and that there was no express or affirmative withdrawal of the construction so insisted upon. The evidence and the findings also establish that after discussing the subject the defendant and his counsel retired to another room for consultation, and upon their return the defendant offered to carry out the contract according to its terms. He made no remark, and gave no indication whatever that he had changed his. mind as to the construction of the contract in respect to the interest, and made no proposal to change the date of the deed. The defendant was clearly wrong as to the interest, and was we think bound to say so if he had changed his conclusion on the subject. He had withdrawn to consider that question and upon his return was clearly called upon to speak on the subject, and to express his views if they were changed, so that the plaintiff could know and understand that such was the fact. By his silence he assented to the idea that he still maintained his former position, and the plaintiff would naturally and necessarily infer that such was the case. Having thus led the plaintiff to such a reasonable conclusion he has no ground for complaint that the plaintiff did not tender either the money or the mortgage. On the start, and throughout, his attitude was that he had a right to interest from the 19th of - February, and from this position he never receded. Upon his return he did not even hesitate.' He said he would fulfil according to *110 the terms of the contract. What terms did he mean ? Clearly such as he had previously indicated, "as he stated no other, or in any form intimated that he had changed the views which he had previously entertained. ■ If he had intended to change the terms, he could and should have so expressed himself, and thus remove the main obstacle which he had interposed to the fulfilment of the contract at the commencement of the interview. The plaintiff at the time produced and handed to the defendant the bond and mortgage, and had a certified check, called for by the contract. As, however, the defendant had demanded terms which were not within the contract, it would have been a useless ceremony to have tendered them to the defendant. Under the circumstances the refusal of the defendant to pass the title except upon payment of interest, as he claimed, was an ample excuse to the plaintiff for not making any formal tender of performance on his part.1 It was the defendant’s neglect or default, which prevented the plaintiff from fulfilling (Fry on Spec. Perf., § 619), and he has no ground for claiming that the fault was with the plaihtiff. For the reasons stated without considering the other questions raised, the order of the General Term should be affirmed and judgment absolute ordered for the plaintiff. All concur. Order affirmed and judgment accordingly.