
    Lee et al. v. Briggs.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    1. Vendor and Vendee—Contract—Certainty.
    A contract for the sale of land which stipulates that the vendor shall “give deed for same at any time on payment of $1,000 ” by the vendees, who have continued to pay interest on the purchase price as provided in the contract, is not objectionable for uncertainty as to the time of performance, as the vendor may make the time certain by tendering a deed, and demanding $1,000.
    2. Same—Description of Property.
    Where the contract, bearing date at a certain city, describes the property as “house and lots (No. 17 to 23) here, ” it is not objectionable for uncertainty in the description, as it may be shown by paroi what property was intended.
    Appeal from special term, Westchester county. .
    • Action by Ambrose Lee and Elizabeth S. Lee against John T. Briggs. Judgment for plaintiffs, and defendant appeals.
    ' Argued before Barnard, P. J., and Pratt, J.
    
      Miller & Phillips, for appellant. Martin J. Keogh, for respondents.
   Pratt, J.

This is an action to compel the specific performance on the part of the defendant of the following contract: “Jerome, N. Y., July 11th, 1884. Memo.: Agreement made this day between Ambrose Lee and. Elizabeth S. Lee, first part, and John T. Briggs, second part, to purchase house and lots (No. 17 to 23) here for $5,000. The latter, John T. Briggs, to give deed for same at any time on payment of $1,000 or more by the former, Ambrose Lee and Elizabeth S. Lee. Balance to remain on bond and mortgage at six percent. for one or more years, at option of said Ambrose Lee; $50 to be paid by Ambrose Lee and Elizabeth S. Lee for the new fence. In mean time, interest to be paid by Ambrose Lee and Elizabeth S. Lee at six per cent., as follows: $20 monthly, and all taxes on the property, to John T. Briggs. Ambrose Lee. Elizabeth S. Lee. J. T. Briggs.” The trial court has found upon ample proof that the parties executed the agreement, and that in pursuance thereof the plaintiffs entered into possession, and duly kept and performed upon their part all the stipulations therein contained. The execution of the agreement, and what has been done since, were matters of fact, and the findings of the judge below seem to be fully sustained by the evidence. The defendant objects to the agreement as uncertain, as void for want of mutuality, and that it would be inequitable to enforce it. The main point, as to uncertainty, is based upon the expression that the deed was to be given at any time •on payment by plaintiffs of $1,000. This will not avail them when it is considered that the plaintiff continued to pay the taxes upon the property and interest upon the purchase price. The time could be made certain by the defendant tendering a deed, and demanding the $1,000.

As to the uncertainty of the description of the property, it was proper to show what the property was by paroi evidence, and that was also rendered •certain by the plaintiff entering into possession of a properly defined and described piece of property, as appears by the pleadings. The question to be determined at the trial was whether there existed a contract between the plaintiff and defendant sufficient in law, and which, equity ought to enforce. It was not whether the contract, standing alone, was sufficient to warrant a judgment of specific performance, but whether, under all the facts and circumstances appearing upon the trial, such a judgment ought to be rendered. Considering all the negotiations, the fact of possession by the plaintiff, and his making improvements upon the'property and payment of taxes, it would have been a fraud upon the plaintiff to permit the defendant to refuse performance of his part of the contract. The judgment must be affirmed, with costs.  