
    Edward P. Day, Resp’t, v. Edward Taylor Hunt, Ex’r, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 15, 1889.)
    
    1. Specific performances—Granting of discretionary.
    The remedy of specific performance, is discretionary, and to be given upon a consideration of all the circumstances before the court, and where neither hardship nor injustice result to the defeated party, a court of review will not interfere with the judgment which requires its enforcement.
    3. Same—When granted.
    In an action to compel the specific performance of a contract to convey land, the defense was that time was of tlie0essense of the contract, that the plaintiff was in default, that during the delay between the default and the bringing of this action the property in question had so advanced in value, that performance would now be detrimental to the defendant’s interest, by depriving him of the opportunity to make a fresh sale of the subject-matter of the contract at the advanced price. Held, that the very fact that the plaintiff had not strictly performed his part and so was without remedy at law, was a sufficient reason for the interposition of a court of equity, where relief is given notwithstanding the lapse of time, according to the actual merits of the case.
    Appeal by defendant from the judgment of the supreme court, general term, second department, affirming a judgment of the special term of the supreme court.
    The action was brought by the plaintiff to procure a construction of a written contract embodying certain conditions on the sale of lands, and when construed, a specific performance of it. The answer admitted the execution of the contract, and denying some of the allegations of the complaint, set up as an affirmative defense the refusal of the plaintiff to execute a bond and mortgage as required by the agreement. The special term gave the relief asked for by the plaintiff, upon condition that within twenty days he pay the sum called for by the contract, with interest, execute the bond and mortgage referred to, pay ten dollars for preparing them, and the costs and expenses of the action, and thirty dollars extra allowance.
    The facts found by the trial judge as justifying this conclusion, were that on the 6th of November, 1885, the defendant put up the lands mentioned in the complaint, for sale by public auction on certain terms, of which the following only are material: ■1
    
      First. Payment of ten per' cent of the purchase-money on the day of and immediately after the sale. -
    
      Second. The residue of said purchase-money will be required to be paid to the said executor at the office of Bergen & Dykman, No. 189 Montague street, in the city of Brooklyn, on the 25th day of November, 1885, when the executor’s deed will be ready for delivery.
    
      
      Third. The executor is not required to send any notice to the purchaser; and if he. neglects to call at the time and place above specified, to receive his deed, he will be charged with interest thereafter on the whole- amount of his purchase, unless the executor shall deem it proper to extend the time for the completion of said purchase.
    
      Fourth. Relates to the taxes and incumbrances.
    
      Fifth. Requires the conditions to be signed.
    
      Sixth. The biddings will be kept opened after the property is struck down, and in case any purchaser shall fail to comply with any of the above conditions of sale, the premises so struck down to him, will be again put up for.sale under the direction of said executor, under these same terms of sale, and such purchaser will be held liable for any deficiency there may be - between the sum for which said premises shall be struck down upon the sale, and that for which they may be purchased on the re-sale, and also for any costs or expenses occuring on such re-sale.
    
      Seventh. Seventy per cent, of the purchase-money may remain on bond and mortgage (containing the usual interest, insurance, tax, and assessment clauses), at the option of the purchaser, for the terms of three or five years, with interest at five per cent per annum, payable semi-annually, the bond .and mortgage to be drawn by the counsel of the seller, at an expense of ten dollars to the purchaser, who shall also pay for recording the said mortgage.
    That the plaintiff purchased two of the lots for $600, paid the required ten per cent and signed the conditions of sale. That the property consists of vacant lots, with no improvements of any kind thereon, and no property of any kind which could be subject of insurance. That the _ mortgage ' tendered to the plaintiff for execution as a compliance with the conditions of sale contained the usual insurance clause, and plaintiff declined to execute it, as not called for by his agreement. That the defendant still retains all the amounts paid by the plaintiff in part performance of said contract, and defendant has never offered to -return or refund the same to the plaintiff. That the plaintiff did not at any time intend to abandon or relinguish his rights under the said contract.
    
      Mr. Dykeman, for app’lt; Mr. Williams, for resp’t.
    
      
       Affirming 10 N. Y. State Rep., 365.
    
   Danforth, J.

The remedy of specific performance is discretionary, and to be given upon a consideration of all the circumstances before the court, and where neither hardship nor injustice result to the defeated party, a court of review will not interfere with a judgment which requires its enforcement. The defense against it in this case is that time was of the essence of the contract; that the plaintiff was in default, and that during the delay between that default and the bringing of this action, the property in question had so advanced in value that performance would now be detrimental to the defendant’s interest, by depriving him of the opportunity to make a fresh sale of the subject matter of the con bract at an advanced price. These objections cannot prevail.

On the contrary, the very fact that the plaintiff has not strictly performed his part, and so is without remedy at law, is frequently a sufficient reason for the interposition of courts of equity, where relief is given, notwithstanding the lapse of time according to the actual merits of the case. 1 Story Eq. Jurisp., § 776.

In that before us there is no express stipulation making prompt performance, or performance upon a day named, any part óf the 'substance of the contract. The terms of the sale really require a different construction. The first condition is explicit in requiring payment of the' ten per cent of the purchase money at a time fixed; the second provides for payment of the balance upon a subsequent day named, “when the deed will be ready for delivery,” while the third condition, at one and the same time, relieves the vendor from the necessity of sending notice to the purchaser, and provides a penalty for .the purchaser’s neglect to call for the deed by imposing “interest thereafter on the whole amount of his purchase; ” the sixth anticipates the case of actual non-compliance by providing for a re-sale, at. the expense of the purchaser, and his liability for deficiency.. In none of the conditions is to be found any statement making time the essence of the contract, and all that can be gathered from them is the intention of the vendor that the transaction should be completed within a reasonable time. Hor does the notice given on the twelfth of February have a different effect. It treats the contract as then subsisting, says “the balance still remains unpaid,” and adds", “unless.you complete your purchase on or before the 26th of February, 1886,” the lots will be offered for sale.

There is nothing to show that either party abandoned the contract or wished or intended to do so. They differed merely as to the form of the mortgage, and so far as appears, that difference only prevented the completion of the sale. Although wrong in his construction as to its proper force, the plaintiff cannot be said to be wholly without excuse. He never had the contract in his possession and seems to have thought it quite unreasonable that he could have been required to provide for insurance in a mortgage given upon vacant and unimproved property. As there is nothing in the words of the contract, so there is nothing in the nature of the case nor in the surrounding circumstances which makes it inequitable for the court to interfere, for the intention of the purchaser was at all times to take the property and pay the balance of the price, and the wish of the vendor has at all times been to sell. The property is still in his possession and the judgment gives him a full indemnity for the delay.

It should, we think, be affirmed, with costs.

All concur.  