Murray v. Harbor & Suburban Building & Savings Ass'n

Hirschberg, P. J. : By the written contract'the defendant agreed to convey to the plaintiff certain real estate upon the payment of $800 in installments. In case of default in any of the stipulated payments for a period of thirty days the contract provided for its termination át the option of the defendant, and thereupon all payments previously • [399] made by the plaintiff were declared forfeited to the defendant as liquidated damages. The plaintiff made the required payments at the stipulated periods for about a year after the execution of the contract, and thereafter continued to make such payments at irregular intervals, until he had paid $440 in all, together with interest on the unpaid balances. Such payments were received by the defendant without apparent protest or objection, and the contract was treated by the parties as in full force and valid. On October 22,1902, the defendant was offered, on behalf of the plaintiff, the unpaid balance of the purchase price, with interest, but refused to receive the same, alleging that it had elected to terminate the contract, and on the 24th day of October, 1902, written notice of such termination was given by the defendant to the plaintiff. The trial court found upon sufficient evidence that the defendant stated to the plaintiff, through one of its officers, during the period of default, that no advantage would be taken of the plaintiff’s default in the making of the payments; that no notice of intention to declare a forfeiture of the contract was given by the defendant prior to the actual attempt at cancellation referred to in the written notice finally given as herein stated, and that the plaintiff was ready and willing to pay the purchase price upon receipt of a deed of the property. A judgment of specific performance was decreed. The main point presented by the appellant upon the appeal relates to the sufficiency of the tender. The money was not produced and tendered to the defendant at the time the offer was made on the plaintiff’s behalf to pay the amount of the unpaid purchase price, and the learned counsel for the appellant accordingly insists not only that an actual tender is an essential precedent to the maintenance of the action, but that the tender must be kept good by the payment of the money into court. The cases cited in support of the contention relate wholly to actions in which it is sought to destroy the lien of mortgages, and have no controlling application to the case at bar. In an action for specific performance a failure to make either a tender or demand before suit would affect only the question of costs. (Stevenson v. Maxwell, 2 N. Y. 408 ; Bruce v. Tilson, 25 id. 194 ; Freeson v. Bissell, 63 id. 168.) The offer to pay the purchase price made in good faith as established upon the trial was [400] sufficient to put the defendant in default and to justify a court of equity in relieving the plaintiff from the large loss which he wjould necessarily suffer from a forfeiture of the contract. The defendant cotild not terminate thé contract under the circumstances of the case without first affording the plaintiff a reasonable time in which to perform. (Cythe v. La Fontain, 51 Barb. 186 ; Toplitz v. Bauer, 161 N. Y. 325, 333.) Clearly, as the parties have treated the contract, time was not of its essence. It would be unconscionable to permit the defendant to keep both the money and' the property. The fact that the plaintiff had not strictly performed his part of the contract according to its precise terms, and so was without remedy at law, furnishes an adequate reason for the granting of equitable relief according to the actual merits of the case; and the remedy by specific performance; being discretionary, a court of review should not .interfere with a judgment which grants the relief in a proper case where neither hardship nor injustice results to the defeated' party. (Day v. Hunt, 112 N. Y. 191.) The judgment should be affirmed. All concurred. Judgment affirmed, with costs.