Bundy v. Dare

Seevers, J. This is an action at law, and tbe only question to be determined is, whether the referee erred in finding that the terms upon which the plaintiff agreed to sell the land had been accepted and complied with by the defendant. The plaintiff wrote the defendant, proposing to purchase the land. The defendant, in reply, proposed to sell for $1,400 • — the purchaser to assume a mortgage for $1,000 — and then proceeded to say: “Send me three hundred dollars, and pay the interest which is due April 1st, 1881.” The plaintiff accepted this offer, but he did not send or pay the $300, or pay the interest. Afterward, there was some controversy as to the kind óf a deed the plaintiff' was to execute, and whether or not the mortgage was to be assumed by the plaintiff, or discharged by the giving of a new note and mortgage. There is also some controversy as to whether one Cushman was the defendant’s agent, and authorized by him to accept the money agreed to be paid. It will be conceded that Cushman was such agent. The plaintiff paid Cushman $100 for the defendant, and a deed was sent the defendant to be executed by him. Before the deed reached him, he had sold the land to another party, and he refused to execute the deed. The defendant proposed to sell the land for a named price, provided $300 was sent, and there was paid $100 interest nearly due on the mortgage. The plaintiff’ accepted this proposition, but did not comply with it. lie did not pay or offer-to pay the $300 and'interest. The defendant’s proposition was: “Send me $300 and pay the interest.” This did not become a contract -until the money was paid. Possibly it might have been paid to Cush297 man, but this was not clone. Mere readiness to pay is not sufficient. The plaintiff did not do all be was required to do. He was required to send the money to the defendant, or, at least, to pay it to Cushman as defendant’s agent. Until he did this, defendant was not bound. We think the referee found correctly, and that the court did not err in confirming his report. Affirmed.