Beebe v. Dowd

By the Court, T. R. Strong, J. The learned justice before whom this cause was tried, as appears from the opinion delivered by him, inclined to think that if the defendant had tendered to the plaintiff such a deed as he Was to give, before the commencement of the action, the defense set up would be valid and sufficient, and the defendant would be entitled to a judgment for a [258] conveyance to him by the plaintiff of the premises in question. This implies, that in the view of the justice the defendant had substantially performed on his part in all other respects the contract between the parties, and that the contract, when the action was brought, was still subsisting. But inasmuch as the deed was not tendered until after the action was commenced, he decided that the tender was too late, and Was unavailing; that the defendant being in default before the action, for not tendering the deed, the plaintiff had a right to repudiate the contract, which he had done, by bringing the action; and thereby the defendant had lost all his equitable rights in the case. I cannot concur in this decision as to the effect of the action upon the equities of the defendant. It would be highly unreasonable to hold the defendant concluded by the suit from all title to equitable relief. Ho time was specified, when the papers were left with Haynes, (to be delivered on the execution of the deed to the plaintiff by the wife of the defendant,) within which the deed must be executed by her; it does not appear that the plaintiff subsequently called for the deed, or gave notice to the defendant that the business must be completed \ the plaintiff took and retained possession of the premises the defendant was to convey to him; and he never demanded of the defendant possession of the premises in question. Under these circumstances I think the equitable rights of the defendant were not at all affected by the action, but remained thereafter precisely as they were before. If the defendant could enforce a specific performance by the plaintiff before the suit, as I think it clear he might by performing on his part, the contract having been partly performed by exchanging possession of the lands and otherwise, sufficient to take it in equity out of the statute of frauds, he was entitled to it afterwards. Hotice to the defendant that he must perform or the contract would be abandoned, and his omission to do so in a reasonable time, or something equivalent, was necessary to put an end to the contract. The delay which had occurred did not authorize the plaintiff to treat the contract as at an end, without such notice or similar act, especially as the [259] plaintiff had possession of the premises to be conveyed by the defendant. [Monroe General Term, September 1, 1856. There was some evidence tending to shoAV that the defendant had failed to perform the contract on his part othenvise than by not giving the deed, but the decision of the cause Avas not placed on the ground of any such default; and the defendant is entitled to have that subject distinctly passed upon by a jury, or the court in place of a jury, at the circuit or special term. The tender having been made before the answer, although after the suit was brought, the defendant might plead it and have the benefit of it. Such was the rule in equity in like cases under the old system, and 1 do not perceive any good reason Avhy it should not prevail under the code. ( Willis v. Chipp, 9 How. Prac. R. 568. Houghton v. Skinner, 5 id. 420. Beals v. Cameron, 3 id. 414. Lyon v. Brooks, 2 Edw. Chan. R. 110. Brush v. VandenBergh, 1 id. 21. Code, § 177. 1 Barb. Chan. Prac. 140, 141.) Strictly, a tender wag not necessary to entitle the defendant to a specific performance. An offer in the answer to perform would be sufficient in the place of it, if even that was necessary. The defendant might have sustained an action for that relief Avithout a tender; but the omission of a tender might affect the question of costs. (Stevenson v. Maxwell, 2 Comst. 408.) My opinion therefore is, that the judgment should be reversed and a new trial granted, Avith costs to abide the event. Judgment accordingly T. R. Strong, Welles and Smith, Justices.]