Kelley v. West

Berry, J. The contract on the part of the defendant to sell, and of the plaintiff to buy, the tract of land, must, upon the allegations of the .-answer, be taken to have been a valid and mutually binding contract for the sale and purchase of a good and unincumbered title. Hence the contract, which is sufficiently referred to and identified in that portion of the answer which attempts to set up a counterclaim, required the defendant to clear off the mortgage upon the tract before the plaintiff could be compelled to accept a conveyance, and perform on his part. If, in order to do this, she was obliged, as she alleges, to take qp the mortgage before its maturity, by paying the full amount which would be due on it at maturity, at an expense to her of the intermediate unaccrued interest, and, having thus made ready, she was willing and offered to fully perform on her part, but the plaintiff on his part refused to perform, she is prima facie entitled to recover the expense to which she has thus been put, that being prima, facie the loss and damage which has accrued to her from the plaintiff’s default. A cause of action by way of counterclaim is therefore sufficiently pleaded in the answer. Order affirmed.