Hudson v. Swift

Spencer, Ch. J. delivered the opinion of the Court. The plaintiff seeks to recover back 350 dollars, paid by him to the defendants, on the 10th day of August, 1819. On that day, the parties entered into an agreement, under their hands and seals,, whereby the defendants covenanted to convey to the plaintiff ten acres of land, therein mentioned, by a good and sufficient warranty deed, which was to be given, xvithin ninety days from the date of the agreement, provided the plaintiff should pay the defendants nine hundred dollars. The sum sought to be recovered, was paid as part of the consideration money. It is very clear, from the case, that the agreement has not been rescinded by the consent of the parties. On the contrary, the defendants have professed to be always read; to fulfil it. It is equally clear, that the covenants were dependent; and the payment of the money xvas an act to be done concurrently with the giving of the deed. Had the plaintiff brought his action on the covenant, it would have been incumbent on him to aver and prove an offer to pay the residue of the consideration. (2 Johns. Rep. 207. 12 Johns. Rep. 212.) The plaintiff’s situation is not changed by suing for the money paid. He was bound to show that the contract was rescinded, or that he stood ready, and offered to pay the balance due, on the day limited for the performance of the agreement; and it does not appear that the plaintiff put himself in a condition to demand a deed. (9 Johns. Rep. 127. 12 Johns. Rep. 274.) Sugden, in his Law of Vendors, p. 162., sums up the law upon this subject, xvith accuracy and precision; “ thus,” he says, “ a vendor cannot bring an action for the purchase money, xvithout having executed the conveyance, or offered to do so, unless the purchaser has discharged him from so doing; and, on the other hand, a purchaser cannot maintain an action for breach of contract, without having tendered a conveyance and the purchase money.” To entitle the purchaser to recover back a deposit, or part of the consideration money paid in advance, he must put the vendor in default, by tendering the money, and demanding a conveyance. I will not say, because it is unnecessary to this case, that the purchaser must tender the conveyance, though I apprehend that such is the law in England. Although the plaintiff is re [28] mediless here, if he chooses to go on with his purchase, he must resort to another forum. Judgment for the defendants,(a.) Footnotes [(a.)] ) Vide Robb v. Montgomery, ante p. 15.