
    The Congregation Shaaer Hashmoin, plaintiff and respondent, vs. William Halliday, defendant and appellant.
    1. Upon an agreement to sell and convey a certain piece of land, “ to be occupied for a Jewish synagogue,” the grantees are not obliged to accept aideed which binds them by a covenant running with the land, to occupy the premises for a synagogue exclusively, so as to render themselves liable in an action, for damages, in case such covenant should be broken; but are entitled to a deed in which the provision touching such use of the premises is incorporated as a condition merely.
    2. The drawing of a deed containing a covenant, instead of a mere declaration or condition, by the grantees, and their request to the grantor to execute it, is not a waiver of their rights, nor will it estop them from demanding such a conveyance as was called for by the contract, upon bis refusal to execute the deed tendered.
    3. Where, upon a mutual contract, by which payment of the purchase money, and conveyance of the premises, are to be simultaneous, if no absolute and unconditional offer to pay, or to pay upon the execution of the deed described in the agreement, appears to have been made by the purchasers, they cannot recover back a deposit, part of the purchase money.
    (Before Barbour, Monell and McCunn, JJ.)
    Heard November , 1865;
    decided December 30, 1865.
    This action was brought to recover $1000, received by the defendant from the plaintiffs, upon the making of a contract between them, whereby the former agreed to sell to the latter a certain lot of land, “tobe occupied for a Jewish synagogue,” and to convey the same to them on the first of May then next, and the former undertook to pay therefor one thousand.dollars, at the time of the making of the contract; and the further sum of seven thousand dollars on the first of May then next, when the said deed should be delivered, and simultaneously therewith. The payment of $1000 was made by the plaintiff, when the contract was executed; and this action was brought to recover the same, upon the allegation contained in the complaint, (but put in issue by the answer,) that the defendant failed and refused to execute such deed, although the plaintiffs duly requested him to do so, and at the same time offered, and were ready, to perform such contract on their part.
    The plaintiff had a judgment for the amount of the deposit, and interest, from which the defendant appealed.
    
      John C. Dimmick, for the appellant.
    I. The plaintiffs, to recover, must show that the defendant refused to execute such a deed as the contract called for ; this, the defendant submits, has not been shown, and the defendant insists that the judge erred in finding as a fact that the defendant refused to deliver any other deed than the one tendered.
    II. The plaintiffs not having tendered for execution such a deed as the defendant was bound to execute, and the defendant not having refused to execute such a deed, the plaintiffs are not entitled to recover.
    
      III. The provision in relation to the synagogue, as contained in the contract, was matter of agreement, and not of condition, and was.properly so inserted- in the deed, as prepared by the defendant, and the plaintiffs had no right to object to that deed.- (Craig v. Wells, 11 N. Y. Rep. 315. Bower v. Cooper, 2 Hare, 408. Blakesly v. Whiddon, 1 id. 166.)
    IV. The'plaintiffs, after what took place before and at the time appointed for paying the purchase money, and passing the' title—? after omitting then to insist that the provision relating to the synagogue should be inserted, as a condition, and not as a covenant—cannot be heard now to make such a claim.
    
      John E. Burrill, for the respondent.
    I. The words “to be occupied for a Jewish synagogue” created no covenant, on the part of- the purchaser that the premises shall be occupied for such purpose.
    1. The words themselves are not those usually uséd for such purpose, nor are they found in the proper place in the ' contract.
    2. The contract declares what kind of a deed shall be given, and what covenants it shall cbntain.
    3. The words are more approprite to create a condition.
    4. If a condition was created, the defendant was not justified in inserting a covenant.
    5. Even if the words amount to either a covenant or condition, the utmost effect to be given to them would be to restrict the use to that of a synagogue, and not to compel the purchaser to use them for that or any other purpose.
    II. Whatever may be the construction of the word's, the seller had no right to insert any covenant or condition in the deed based upon them.
    1. If he desired to insert them at all, he might perhaps be justified in placing them in the deed in the same position in which they were in the contract.
    2. The contract declares that the deed shall be a warranty, and provides what covenants it shall contain.
    3. It was not necessary to protect the defendant that these words should be inserted in the deed, because if they amounted to a covenant or agreement, the defendant had his remedy on the contract. (Morris v. Whitcher, 20 N. Y. Rep. 41.)
    III. The evidence shows that at-the time fixed by the contract, the plaintiff was ready to receive a proper deed and pay the residue of the purchase money, but that the defendant refused to deliver any deed but one containing the covenant in question; the plaintiff was therefore entitled to recover the $1000 paid and interest.
    IY. The findings of the court are in accordance with the evidence.
   By the Court, Barbour, J.

The evidence shows that, a few days before the time fixed in the contract for its performance, the plaintiffs sent to the defendant, and requested him to execute, a deed, containing a covenant!, whereby the grantees covenanted and agreed for themselves, their heirs, &c. to and with the grantor, his heirs, and assigns, that the granted premises should be “occupied for a Jewish synagogue, or, first class dwelling houses;” that the defendant struck out the words “ or first class dwelling houses,” and executed such deed, so amended, and on the 2d of May, (being Monday,) tendered and offered to deliver to the same the plaintiffs, and they refused to receive it, upon the ground that the clause in relation to first class dwelling houses had been stricken out, but offered to take it, with that clause reinstated. That was declined by the defendant, and, thereupon, the plaintiffs demanded the return of the $1000. The defendant was not requested to strike out the covenant in regard to the synagogue, nor to execute any deed other than that; which contained the words “or first class dwelling houses,^ and which had been so prepared by the plaintiffs.

The learned justice before Whom, without a jury, the cause was tried, has found, as a fact, that the defendant refused to execute a deed of the premises in accordance with the terms of the agreement; but, upon a careful examination, I am unable to discover sufficient evidence to show that such refusal was made.

. This finding is important, for the plaintiffs were not required ■ by the contract to accept a deed which bound them by a coyenant, running with the land, to occupy the premises for a synagogue only,, thereby rendering themselves liable in an action ■ for damages, in case such covenant should be broken; but they were entitled to a deed in which the provision touching the use of the premises, was incorporated as a declaration or condition merely. (Craig v. Wells, 11 N. Y. Rep. 315. Bower v. Cooper, 2 Hare, 408. Blakesly v. Wliiddon, 1 id. 176.) It is neither necessary nor proper to speculate as to the question whether such condition was more or less valuable than a covenant, in that respect. It is enough that the contract required a conveyance of the land “ to be occupied,” or used, in a certain manner. That, had the deed been so drawn, would have been, at most, a condition entitling the grantor, or his heirs, to a certain remedy in case of breach ; and the defendant had no right to require the plaintiffs to accept such a deed as would have given the grantor a right to another or different remedy.

Nor do I think the drawing of the deed containing a covenant instead of a mere declaration or condition, by the plaintiffs, and their request to the defendant to execute it, was a waiver of their right, or estopped them to demand such a conveyance as was called for by the contract, upon his refusal to execute the deed tendered. They may have - been content to accept a deed containing the provision in relation to the dwelling houses, so as to leave it optional with them to erect a synagogue or dwelling houses, as they should see fit, even though expressed in the form of a covenant, and yet quite unwilling to receive a conveyance containing a covenant on their part to occupy, the premises for a synagogue exclusively. At' best, it was a mere proposition on their part to change the terms of the contract, which was not accepted. If, therefore, the defendant had refused, when properly requested by the plaintiffs, to execute the deed described in the written agreement, there can be no doubt the latter would have been entitled to a recovery in this action. Assuming, as we do, however, that the finding in this particular was erroneous, there can be no doubt the judgment should have been for the defendant, upon the trial. For the sole objection made by the plaintiffs to the deed tendered by the defendant, was not to the form of the instrument, but to a matter of substance, in that it did not contain a covenant not embraced in the agreement, and which the defendant was not bound to insert, and no demand was made upon him for the execution of the deed called for by the contract, nor, indeed, any deed not containing the covenant as to the dwelling houses. For aught that appears, therefore, the defendant was, at the time fixed by the contract for the delivery of the conveyance, and ever since has been, quite willing to perform the agreement on his part.. Besides, the only offer or tender of payment which is shown by the evidence to have been made by the plaintiffs, was coupled with, and formed a part of, the request to the defendant to execute and deliver a deed containing the covenant in relation to the dwelling houses. No absolute and unconditional offer to pay, or to pay upon the execution of the deed described in the agreement, appears to have been made ; and as the contract was mutual, and the payment and conveyance were to be simultaneous, it follows that, for this reason, the plaintiffs are not entitled to recover. (Swan v. Drury, 22 Pick. 485. Shaw v. Turnpike Co., 2 Penn. R. 454. Howe v. Huntington, 3 Shipley, 350, Fairbanks v. Dorr, 6 N. H. Rep. 266. Warren v. Wheeler, 21 Maine R. 484. Dana v. King, 2 Pick. 155. Hunt v. Livermore, 5 id. 395.)

The judgment should be reversed, and a new trial granted.

Monell, J. (dissenting.)

It is not necessary for me to add any thing to the opinion delivered by me at the special term, that the words in the contract, “ to be occupied for a Jewish synagogue,” are to be regarded in the light of a condition, and not of a covenant. This was substantially admitted on the argument. It is clear, therefore, that the deed finally tendered containing the covenant, was not a compliance with the terms of the contract; nor was it such a deed as the plaintiff was bound to receive. The question then is, has the plaintiff shown enough to entitle him to rescind the contract, and recover 'his deposit ?

If a demand by the plaintiff of a deed was necessary, the evidence, I think, is sufficient to show that it was rendered unnecessary, by the neglect of the defendant to execute or deliver any other deed than the one containing the covenant.

Mr. Gleason, a witness for the defendant, testified, that he tendered the deed prepared by the plaintiff, and that the plaintiff refused it, . because the words or first class dwelling houses” had been stricken out. No other deed was offered. He relates a conversation with Mr. Swain, one of th,e plaintiff’s attorneys, and said he thought Swain pointed out the objectionable clause in the deed, and said, if I would strike it out he would take the deed.” The defendant testified, that the plaintiff objected to the deed, and wanted the written agreement stricken out. That their objection to the deed was, that they could not use the premises for any purpose but a synagogue, and they objected to the covenant in the deed on that account.

It is undisputed, that the only deed tendered contained the objectionable .covenant. It is also indisputable, that at no time did the defendant offer or evince a willingness to deliver any other deed. The evidence, perhaps, does not show that the plaintiff demanded a deed, executed in the precise terms of the contract; but it does show, that they always objected to the deed tendered, and on the ground that it restricted the use of the property.

Taking the averment in the- answer, that the defendant offered such deed, and the proof on the trial that it was the only deed tendered, and that the plaintiff refused to receive it because the covenant was in, and it is quite equivalent to evidence of a refusal to deliver any other deed, and was, therefore, a waiver of a demand, if one was necessary. The disagreement of the parties arose from the covenant in the deed; and the language of the whole case is, that the defendant insisted the covenant should remain, and the plaintiff objected. This excused a specific demand,«and even rendered a tender of performance unnecessary, it being evident that the defendant would refuse to execute any other deed. A refusal by one party to perform, always excuses a demand of performance by the other. (Driggs v. Dwight, 17 Wend. 71.)

The performance by the parties, in this case, was to be simultaneous. The deed was to be given, and the money paid at the same time. The tender of the purchase money entitled the plaintiff to the deed, and the case would not be strengthened if they had, in addition, demanded it,,

But, I think, the plaintiff's readiness to perform and tender of performance, was all that was required under the facts of the case, and that no specific demand was necessary.

The rule, is uniform at law, and in equity, that where a party refuses to perform, or puts it out of his power to perform, no demand by the other party is required.

Thus, in Driggs v. Dwight, (supra,) a tenant who had been refused possession by the landlord of leased property, recovered damages without showing any demand.

In Foote v. West, (1 Denio, 544,) the defendant agreed to sell a church pew, and to execute a good and sufficient deed therefor. At the time appointed, he offered to the plaintiff a lease in perpetuity, executed by the church society, conveying the pew subject to a rent. The plaintiff claimed a deed not subject to rent, and that it should be executed by the defendant. On this proof, the plaintiff rested, and the defendant moved for a nonsuit, on the ground that the plaintiff should have demanded such a deed as he was entitled to, and then waited a reasonable time for it to be prepared and executed. The motion was denied, and the court, in banc, says: “ Such position, taken by the defendant, made it unnecessary for the plaintiff to wait any time for the defendant to execute the deed to which he was entitled by the contract. The contract was then broken by the defendant, and a right of action accrued to the plaintiff.”

In Bellinger v. Kitts, (6 Barb. 273,) where the defendants refused to convey, it'was held that an offer and readiness to perform, on the part of the plaintiff, was enough. Stone v. Sprague, (20 Barb. 509,) and Flynn v. McKeon, (6 Duer 203,) are to the same point.

In the case before us, it would have been a vain and idle performance to have demanded any deed other than the one the defendant tendered, and the law never imposes the performance of a fruitless duty. The evidence makes the case clear to my mind, that the defendant did not intend, at any time, to recede from his position, that the covenant should be in the deed; and no demand or tender would have changed that determination, It would have been idle, therefore, to have gone through the ceremony of a demand or tender.

Time having been made of the essence of the contract, (Wells v. Smith, 7 Paige, 22,) a specific performance could not now be enforced, and the plaintiffs would be without remedy or redress, if they are to be put in default by reason of not having demanded a performance, when performance would inevitably have been refused,

I see no reason for changing the views I entertained at special term. Indeed, the careful examination I have given the case, has confirmed me in the decision I then made.

I am, therefore, in favor of affirming the judgment.

New trial granted.  