Foote v. West

By the Court, Jewett, J. No question was raised in the court below or on the argument here as to the amount of damages which the plaintiff was entitled to recover, if entitled to recover any thing. The counsel for the plaintiff in error insists, first, that the plaintiff below was bound to demand of the defendant such deed as he claimed he was entitled to have under the agreement, and to wait a reasonable time for the defendant to make out and deliver such deed, and then to have presented himself to receive it. Such, no doubt, is understood to be the rule between vendor and vendee, when by the terms of the contract concurrent acts are to be performed by the parties. (Hudson v. Swift, 20 John. R. 24; Hackett v. Huson and Youngs, 3 Wend. 249; Fuller v. Hubbard, 6 Cowen, 13; Heard v. Wadham, 1 East, 627; Seton v. Slade, 7 Vesey, jr. 278: Finney v. Ashley, 15 Pick. 546.) The plaintiff did, as the evidence shows, in the winter of 1844, shortly before the suit was commenced, demand such ■deed as his contract called for of the defendant, who instead of manifesting a willingness to execute such deed at any time, refused, and insisted that the plaintiff should receive a deed from the Trustees of the Presbyterian Society at Saratoga Springs, for the pew which he had contracted to convey to the plaintiff, subject [547] to and upon condition that he or his representatives should pay-yearly to said trustees the sum of sixteen dollars in quarter yearly payments. Such position taken by the defendant made it unnecessary for the plaintiff to wait any time for the defendant to execute the deed, to .which he was entitled by the contract. The contract was then broken by the defendant, and a right of action accrued to the plaintiff. The defendant contracted to execute to the plaintiff a good and sufficient deed for the conveyance of the pew within one year from its date. The time had elapsed, and a demand had subsequently been made for the deed, which was refused. The plaintiff in error also insists that the purchaser in this case was hound to receive the conveyance offered him from the trustees of the society, subject to the payment of the annual rent of sixteen dollars. It seems to me that this conveyance was not the title agreed to be given. If such conveyance was the one the parties contemplated, when they made their agreement, it is enough to say, the defendant most singularly failed in its description in his written contract. The evidence offered by the defendant on the trial and rejected by the court was wholly immaterial to the issue, and was therefore properly excluded. The court below committed no error that I can discover, in its various decisions made on the trial, and the judgment must consequently be affirmed. Judgment affirmed.