
    Stephen C. Darrow, Appellant, v. Stephen Cornell and Simon L. Benson, as Executors, etc., of Jacob N. Doty, Deceased, and Others, Respondents.
    
      Contract for the sale of real estate—notice to perform makes time of its essence — tender of perfoi'manee by a vendor whose title rests on unrecorded deeds — when a vendee, who has not made tender, cannot recover damages.
    
    Where the time of performance of a contract for the purchase and sale of real .estate has been, by the consent of the parties, extended indefinitely, either party, by notice to the other, may make time of the essence of the contract, and require the other party to perform, or offer to perform, at or before the time mentioned in the notice.
    Where, at the time fixed for performance, the vendor’s title depends upon certain deeds, which are not of record, he must, in order to make an effectual tender of performance, record them before the tender.
    A vendee who has not tendered performance and demanded the deed of the premises is not in a position to maintain an action for damages against the vendor for a failure to perform the contract, unless it clearly appears that the vendor could not give a good marketable title.
    Appeal by the plaintiff, Stephen 0. Darrow, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Washington on the 23d day of September, 1897, upon the report of a referee.
    The plaintiff, on the 6tli day of March, 1889, entered into a contract with Jacob N. Doty, deceased, by which the latter agreed to sell and convey to him, by a good and sufficient warranty deed, a farm of eighty-seven acres, situated in Easton, Washington county, N. Y., for -the sum of $3,000. By the terms of the contract the plaintiff was to pay the interest annually on the said purchase price, and the taxes until the 1st day of April, 1894, when the deed was to be delivered to- the plaintiff and a mortgage executed by him securing the payment of the purchase price, as in the agreement specified. The plaintiff entered into possession of the farm on the 1st day of April, 1889, and during his occupancy paid interest reserved in the contract to the amount of $720,-and $103 as taxes, and put on said premises permanent repairs and improvements of the value of $1,000. On June 17, 1891, the said Jacob N. Doty died, leaving a last will and testament, which thereafter was duly admitted to probate by the surrogate of Washington county, and letters testamentary issued to the executors therein named. The defendants in the action are said executors, the legatees or devisees named in-said will, and Charles C. Yan Kirk, to whom one of said devisees had conveyed his interest in said farm and contract. •
    On the .1st day of April,. 1894, when, under the. provisions of the contract, the deed was to be delivered to the plaintiff and- the mortgage executed by him, the time for the performance of the contract was postponed by consent of the parties interested. Negotiations in reference to a performance of the contract continued between them until .the twenty-second day- of- December following, when such negotiations ceased,
    The plaintiff afterwards commenced this action to - recover damages for an alleged breach-.of the contract in'consequence of .the failure of the defendants to execute and deliver- a deed of the premises described therein pursuant to the terms and conditions thereof.. The defendants denied such breach, and,, alleging a performance of the contract on their part, claim, as affirmative relief, specific performance thereof.
    The referee before whom -the case was tried found that the defendants had duly performed the contract on their part, and directed av dismissal of the complaint and an entry of a judgment in-favor of the defendants for a- specific performance of the contract by the. plaintiff. ■
    Other facts are stated in the opinion.-
    
      C. H. Sturges, for the appellant.
    
      C. C. Van Kirk, for the respondents.
   Putnam, J.:

It is to be inferred from the record that both the plaintiff and the defendants endeavored, in good faith, to perform the contract.- Negotiations to that end were continued from April 1 to December 22, 1894, and both parties were at much trouble and expense- in the matter. . It cannot be doubted that the plaintiff was desirous of.' obtaining a deed of the farm.- He had contracted for it with a view of securing a- home; he had expended over $1,000 in permanent improvements and repairs.. During the negotiations he employed a surveyor to plot, the land, and an attorney to search.the records, at a considerable expense, and he consented to an extension, of the time .for the delivery of the.deed over eight months.in. order to allow the ■defendants to cure defects. in their, .title to. the said. farm. He ■appeared to have been desirous of carrying, out the provisions of the ¡contract, and.I see no reason, to doubt that he acted in good faith in the transaction. " .

It is true, as claimed by the learned- counsel for the respondents, •that on and after April 1,. 1894,.the time for the performance of the contract having, by consent of the parties, been extended indefinitely, the plaintiff, before electing to rescind, was compelled to give the defendants notice and a reasonable time in which to perform. (Darrow v. Cornell, 12 App. Div. 604, 607.) But I am unable to agree with his view as to -the effect of the notice of October 19, 1894, which the plaintiff served upon, the defendants. Ho more force or •effect should be given to this paper than its language warrants. In •the notice the plaintiff did not rescind the contract or refuse to perform it. He charged-the defendants with a failure' to' perform, and gave them notice. that .on. account of.' such failure he should hold them, responsible for the damages he had sustained.. It is true that the plaintiff, at the time, proposed to abandon the possession of. the premises; but by the communication'of Mr. Van Kirk of October twenty-fourth, and the answer of the plaintiff of October twenty-sixth; the parties came to an agreement as to the terms on which the plaintiff should thereafter occupy the premises. By such agreement the contract was modified so that the plaintiff should continue such occupancy as a tenant instead of a vendee in possession under the contract, and the time for the performance of the agreement was extended to December twenty-second, at noon — the agreement that the plaintiff should thereafter occupy as 'tenant evidently being only intended to .remain operative in case the defendants were unable, in the time to which the performance of the contract was extended, to tender a marketable title. The arrangement in. fact made left the contract as thus modified in full force.

And afterwards the parties continued active negotiations, up to December twenty-second, with a view of ¡ a performance of the contract. They treated, and evidently regarded, the contract as in force, as it in- fact was, with the modification above referred to.

I tlii-nk,. therefore, that the contract as thus modified remained in force, the time for its performance'-being, by. the consent of both parties, extended to December 22, 1894. The letter of the plaintiff to Hr. Van- Kirk of October- 26, 1894, was in fact a consent to extend the time to perform the contract up to December twenty-second at noon. It is true that in the letter the plaintiff stated that if he (Mr'. Van Kirk) desired “to settle ” with him, it must be done on or before December twenty-second. But the differences between the parties, which were to be settled, related solely to the- defendants’ title to the. farm in question.

It appearing, therefore, that each party had until the 22d day of December, 1894, at noon, to perform the contract,. I will consider in the first instance whether, under the facts disclosed by the record, the defendants were entitled - to the judgment awarded them for a specific performance of the-eontract.

To entitle them to that relief, it should appear from the testimony that on or before the twenty-second day of December the defendants had performed, or tendered performance of, the contract. (Flynn v. McKeon, 6 Duer, 203; Hoag v. Parr, 13 Hun, 95, 99 ; Eddy v. Davis, 116 N. Y. 247, 254; Leaird v. Smith, 44 id. 618, 623.)

Mr. Van Kirk, on Saturday, the twenty-second day of December, mailed deeds from the defendants to the plaintiff to Mr. Stiles, which were received by the latter on the following Monday and immediately returned. No other tender or performance was made. I think this tender was insufficient. It was made too late.. In his letter of October twenty-sixth, above referred to, to Mr. Van Kirk, who acted for all the defendants, Mr. Darrow said : “As you know, I am a farmer, and I must make arrangements for the ensuing year • for a farm at some place. This requires some time, so I may be able to move or prepare to put in crops for the ensuing year, and if it is desired to settle with me, it must be done on or before the 22nd day of December,. 1.894, at noon, or I shall make other arrangements absolutely and unqualifiedly; this matter must be finally closed and papers signed to that effect if a compromise is made,, otherwise, as a tenant, I shall leave the place on or before April 1st, 1895.” It has been held that “ The parties to a contract may, by its ■ terms, - make the time of performance essentially important and its observance in. that respect requisite to relief. (Benedict v. Lynch, 1 John. Ch. 370.) And when that is not so either of the parties to the contract may, by a-reasonable notice to thefotheri party-for-that'purpose, render the time of performance as of the essence of the contract and avail himself of forfeiture on default.” (Schmidt v. Reed, 132 N. Y. 108, 113 ; Myers v. De Mier, 52 id. 647.) In the letter of October twenty-sixth the plaintiff clearly and explicitly notified the defendants that he should require a performance of the- contract on or before December 22, 1894, at noon. The effect of this communication was to make time as of the essence of the contract, and the defendants were bound to perform or offer to perform at or before the time mentioned.

A tender to Mr. Stiles was unauthorized. Clearly the offer to perform should have been made to the plaintiff personally at his residence, or at the place mentioned in the contract for its performance.

Again, the plaintiff was entitled to receive from the defendants not only a good, but a marketable title to the farm in question. ( Vought v. Williams, 120 N. Y. 253; Irving v. Campbell, 121 id. 353; Moore v. Williams, 115 id. 586.) He was entitled to a good record title. (McPherson v. Schade, 149 N. Y. 16; Moore v. Williams, supra.) Had the tender or offer of performance made by Mr. Van Kirk to Mr. Stiles and received by the latter on December twenty-fourth been- in time and been made to the proper person, it was insufficient, because it did not offer a marketable title. Mr. Van Kirk offered quitclaim deeds from himself and the executors of Jacob N. Doty, deceased, and a warranty deed from eight of the devisees or legatees, and a paper called a search, but not certified by the clerk of Washington county or signed by any person. It is not denied that two deeds necessary to perfect the title of the deceased to the premises in question were not then on record; one from Angelia Doty to the deceased, and another from Theodore 0. Richmond to John Gr. Edinundson. Neither of these deeds was recorded until after the commencement of the action. There was evidence that the plaintiff’s attorney had seen one of the deeds in the possession of Mr. Van Kirk prior to December 22, 1894, but none that he had ever seen the other. Nor did it appear that such last-mentioned deed was .mentioned in the paper called- a search sent by- Hr:-Van Kirie td Hr. Stiles on December twenty-second 'and received by the latter on December twenty-fourth. It is-.evident 'that to' make the alleged tender effectual, the defendants should-have placed such deeds upon record prior' to December twenty-•second, or should have tendered- such deeds to the plaintiff, together . •with- those of Hr. ■Van. Kirk and the devisees and executors • of Jacob N. Doty, so that the plaintiff could have recorded thé'm. Had the plaintiff accepted the title offered by the defendants, there would ■have 'been on the record a’defect therein. Had he afterwards had ‘occasion- to' defend his title in an action, he would have been' com- ■ pelled to obtain those deeds, or, if .lost or -destroyed", to have proved their execution, delivery and contents. • • v

Without, considering other alleged defects in the title offered- at the time in question, we think the alleged tender was ineffectual, for the'-reason' that the- two deeds above' mentioned were not then recorded, and were not offered to the plaintiff So that he could record them. A marketable title was not tendered.

■ The defendants, .therefore1, at the time to which the performance ■ of the contract was extended by-consent of the parties, did not perform- or offer to perform the contract, and were not entitled tó a •judgment for a specific performance. -

It does' not result from the conclusion thus reached that the plaintiff Was entitled to maintain his action for damages. The time " for -the fulfillment of the contract' was extended from the 5th day of April -to the 22d day of December, 1894. It does not appear that on that day, or at any time before the commencement of the action, the plaintiff offered or tendered performance of the'covenants of the contract on his part' to be performed, or demanded a deed from the defendants. .The covenants of the defendants’ testator to.execute a deed, and of the plaintiff to give a purchase-money mortgage and pay the interest then due, were" dependent, and either party, in •order to recover of the other, must show performance, or an offer to -perform. (Carman v. Pultz, 21 N. Y. 547, 549 ; Leaird v. Smith, 44 id. 618, 623 ; Hoag v. Parr, 13 Hun, 95, 99.) It'is only where ■ it iss- clearly shown that the vendor was Unable to give a good marketable, title, that an offer of performance by-the vendee seeking to •recover damages resulting from a breach of the contract will be ■ ¡excused. (Higgins v. Eagleton, 13 Misc. Rep. 223 ; Glenn v. Rossler, 88 Hun, 74.) As we have seen, the defendants did not tender performance in time ■—■ time, by the notice contained in the plaintiff’s letter of October twenty-sixth,; having become as of the ■ essence of the' contract; and their attempted tender, served on Mr. Stiles did not offer to the plaintiff a marketablé title. But it cannot besaid that it was shown that they could not have given one, had the plaintiff tendered performance and demanded a deed on the 22d day of December, 1894. Had he made such a tender and demand, and pointed out the -objections to the title offered, the "defendants might have been able -to remedy such' defects. -The plaintiff having "failed to perform or-tender performance on the day ■ to which the execution of the contract -was, by consent, postponed, was not in a position to maintain an action for damages.

■ The judgment, as far as it awards a specific performance in favor of the defendants, should be reversed; otherwise, affirmed, without -costs to either party on this appeal or in the court below.

, All concurred.

• Judgment, in so far as it awards a specific performance in favor, ■of the defendants, reversed; otherwise, affirmed, without costs to either party of this appeal or in the court below.  