Guthrie v. Thompson

Boise, J. There is, perhaps, sufficient evidence to establish the valuation by Wilcox and Nelly. The only evidence of the execution and tender of a deed is, that Guthrie had a deed made out to the property described in the contract; but the witness does not know whether the deed was properly witnessed, or in proper form; and there is no evidence tending to show that any deed was ever tendered to Thompson; and, consequently, there is an utter failure to prove the tender. And the counsel for Guthrie admit that the proof of tender is very scant, and maintain that no tender, was necessary; that it was the duty of Thompson to make and tender a deed to Guthrie for execution; and various authorities are cited in support of that proposition, which I shall consider hereafter. This is a case of dependent covenants. The cancelling or giving up of the note and mortgage, and paying the balance of the purchase money, found on the valuation, and the making the deed, were to be concurrent acts. I think the understanding of the parties to such contracts is, that the vendor shall, at his own expense, prepare and tender the deed, and the vendee will not be in default until he does so. And, generally, where either party to such a contract seeks to enforce it by suit, he must first put the other party in default—the vendor, by making and tendering the deed, and the vendee, by tendering the price and demanding a deed— which deed, in contracts like the one sued on, the vendor should have a reasonable time to prepare after demand. Such I understand to be the rule in New-York. In Connelly v. Pierce, 7 Wendell, p. 129, the court say, “ the party, who is to give a deed, certainly should prepare and have it drawn at his own expense.” It is true, a different rule prevails in England, as declared in the case of Baxter v. Lewis, Forrest's Ex. R. 61-2, referred to in Sugden on Vendors, Am. ed. 1820,pages 181-2; but the courts of New-York have refused to adopt the English rule, for the good reason that such is not the practice of the country, or the understanding of parties to such instruments. [356] In England, the practice of conveyancers was for the solicitor of the purchaser to prepare the deed,, which practice is mentioned and discussed in a note to the case of Fuller v. Hubbard, 6 Cowen, p. 18. In this country the practice is different from the English practice. * Here the vendor prepares the deed, and, where such is the practice and the understanding of the parties, such should be the rule. Erom the current of authorities in New-York, I understand that, in that State, in order to maintain an action for the purchase money, under a contract to convey land when the purchase money is paid, the vendor must make and tender a deed; and the rule in England is the same, except that there the deed should be made by the purchaser. Eor there it is, necessary, before the vendor can sue for the purchase money, to execute the conveyance, or offer to do so. The'rule is thus laid down in Sugden on Vendors,page 162: “ Thus, a vendor cannot bring an action for the purchase money without 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.” The only difference between the rule here and in England is as to who shall prepare the conveyance ; and such Üifference arises from the variance in the practice of conveyancers here and in that country. The other point made is, that the contract was abandoned by the parties. This being a defence set up in the answer, and issue being taken thereon, the burden of proof is on the defendant, Thompson. The lapse of time, insisted on by defendant as evidence of abandonment, would not be sufficient, if the parties had treated the contract as still continuing; and the question of abandonment is really one of fact, as to the intent and understanding of the parties. There is evidence on both sides on this point; and, on an examination of the depositions, the court is of opinion that G-uthrie considered this contract abandoned, and so treated the property as his own. [357] The testimony of Messrs. Charman and Warner is the most definite, especially that of Charman, who testifies, that some time after the date of the contract Guthrie offered to sell to Charman and Warner one-half of this property, and told him (Charman) that he was the entire owner of the property, and that Thompson had a mortgage on the property of the amount named in the contract. There could not well be more direct testimony of the abandonment of the contract by Guthrie, unless it were a written abandonment, and I think an abandonment by parol would be binding on the parties. The-decree of the court below will be affirmed.