
    John A. Lighthall, Appellant, v. Mary A. McGuire, Individually, and as Executrix, etc., of Phillip McGuire, Deceased, Respondent.
    
      Sale of real estate — action by the vendee to recover liquidated damiages —failure to show performance or a tender thereof — exacting what the contract does not provide should be given.
    
    The right of a vendee, in a contract for the sale of real estate, to recover liquidated damages; fixed by the contract in case of the failure of either party to perform, depends upon proof by him of a tender of performance or of hiS' willingness and ability to perform in case performance was prevented or was expressly waived by the vendor.
    Where, in such a case, it' appears that the vendee, although having the money requisite to make his payment in a bank, did not have the money with him, or tender a check therefor or execute and have ready for delivery a bond and mortgage, which he was required by the contract to give the vendor in part payment, but insisted that he was entitled' to certain timber not standing, on the premises, and not mentioned in the contract, neither performance nor tender of performance is shown upon his part, and he is not in a position to recover the liquidated damages provided to be paid in case of a breach.
    Appeal by the plaintiff, John,A. Lighthall, from a judgment- of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 19th day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14tli day of October, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.
    Upon the 19tli day of October, 1895, the plaintiff and defendant entered into a writtencontract for the sale by the latter to> the former of about 2,300 acres of land, consisting of 21 separate parcels situate in the counties of Herkimer and Oneida in this State. The contract also embraced a quantity of personal, property which was specifically mentioned therein. It likewise provided that, “ On payment of the sum of Five Thousand dollars, to be so paid on or before the first day of December, 1895, the party of the first part covenants on that day to deliver to the party of the second part the deeds and bill of sale aforesaid; and concurrently therewith ..the ■ party of the second part agrees to secure to the party of the first part the balance of the purchase money aforesaid by executing and delivering to her his bond therefor, with a mortgage upon the first eight parcels of land above described. * * * ”
    
      And this provision was followed by a mutual covenant to the effect that the party failing to fulfill should pay to tlie other the sum of $1,000, which sum was fixed and agreed upon as liquidated damages for such failure.
    The first day of December falling upon Sunday, the parties met upon the following day, December second, at which time an extension was granted the plaintiff until December ninth in order that his counsel might have an opportunity to examine and pass upon certain abstracts of title of the premises which were furnished him that day by the defendant in fulfillment, of one of the conditions of the contract.
    Upon the ninth of December the parties with their respective counsel again met, at which time the plaintiff or his counsel claimed that the defendant’s title to.some portion of the lands in question was imperfect and not such as she was required by the terms of her contract to furnish. Some little controversy arose over this question of title, the result of which was that the parties separated without either of them actually performing or making a tender of performance.
    Immediately thereafter the plaintiff brought this action to recover the amount of liquidated damages specified in the contract, claiming that he was prepared and ready to fulfill upon his part, but was prevented from doing so by the inability of the defendant to perform on her part.
    
      J. A. McFarran, for the appellant.
    
      Walter Ballou, for the respondent.
   Adams, J.:

The contract between the parties to this action was a mutual one; and by its terms the plaintiff was required to pay to the defendant the sum of $5,000 before he became entitled to receive or demand from the latter a deed of the premises. It follows, therefore, that the plaintiff’s right to recover herein depended upon his proving either an actual tender of performance on his part or a willingness' and an ability to perform, in case performance was prevented or expressly waived by the defendant. • (■_Beecher v. Conradt, 13 N. Y. 108; Nelson v. Plimpton Fire Proof Elevator Co., 55 id. 480; Smyth v. Sturges, 108 id. 495.)

There is some evidence in the case tending to show that upon the 9th day of December, 1895, the plaintiff did have the sum of $5,000 deposited in a bank in the city of. Syracuse, subject to his check; and he testifies that he was prepared and willing to pay over the same to the defendant, and that he was also prepared and ready to execute and deliver the bond and mortgage required by the contract. He did not, however, have" the money with him, nor did he tender any check therefor, .nor were the bond and mortgage executed and ready for delivery. And it also appears that he did not demand a deed or bill of sale of the property described in- the contract. On the contrary, it does appear, and this fact is not controverted, that when the parties met upon the second of December, and separated .without consummating their contract, the plaintiff’s attorney-, McFarran, who, it seems, was fully empowered to act for the plaintiff, was informed by the defendant’s attorney that if there was any disposition upon the part of the plaintiff to stand upon technicalities, Mrs. McGuire would tender him a deed of the premises, to which he replied that he would waive any technicality.

Furthermore, upon the trial, the defendant furnished considerable evidence tending to show that when the parties met at Forrestville upon the ninth of December it was claimed by the plaintiff that he. was entitled to a quantity of spruce spars which were standing upon premises known as the Blake Tract,” in Herkimer county, which tract was not embraced in any of the. parcels mentioned in the contract. Those spars were 436 in number and were of the value of $1,190.

The defendant and her witnesses testified that this claim upon the part of the plaintiff was disputed ; that she refused to accede to the plaintiff’s demand, and that the plaintiff’s counsel thereupon stated that if he could not have the spars there was no use of talking,, and that they would go no farther in the matter.

This evidence was denied by the plaintiff and his witnesses, who, while admitting that a claim was made to the spars, say that their-delivery by the defendant was not insisted upon, as a prerequisite to the fulfillment of the contract upon the part of the plaintiff.

There is no mention in the contract of any spars; and, consequently, if, as contended by the defendant, the plaintiff did insist, that he was entitled to them, and expressed his unwillingness to consummate. the agreement unless his right to them was conceded, the defendant was unquestionably relieved from any performance 01-tender of performance on her part.

The record before us shows very clearly that there was a sharp conflict of evidence as respects this feature of the case, and an issue, of fact was thereby presented which was very properly submitted to the jury by the learned trial justice. Indeed, that was the principal issue in the case, the court having held with the plaintiff that the defendant’s title to some of the parcels of real estate was not a marketable title. Upon this single issue to which we have adverted the jury found in favor of the defendant, which, of course, defeated the plaintiff’s right to recover" damages. ' The evidence is quite sufficient to support the verdict thus rendered, and we find no justification for interfering therewith.

"We have carefully examined the several exceptions taken by the plaintiff during the progress of the trial, but find in none of them any error which requires a reversal of the judgment and order-appealed from. We conclude, therefore, that the judgment and order herein should be affirmed, with costs. Judgment and ordeiaffinned, with costs.

All concurred, except Follett, J., not sitting.

Judgment and order affirmed, with costs.  