
    Kalman Juvelier and Israel Teitelbaum, Appellants, v. Jamaica Park South Realty Corporation, Respondent.
    (Supreme Court, Appellate Term, First Department,
    March, 1916.)
    Contracts — in writing — pleading — when judgment should be reversed.
    Tender — of performance — waiver of formalities — default — evidence.
    While strictly speaking it is the law that a tender of performance of an agreement to pay money can only be made by an actual, physical tender of the money, it is also true that a party may not only' waive a tender but may also waive any formalities or strict requirements of a tender.
    Whether the formalities of a strict tender have been waived in any case depends upon the intention of the party as evidenced by his acts.
    Where one party unconscionably seeks to put another party into a technical default it is a fair inference of fact that the second party does not intend to waive any technical rights which he may have and which will prevent his being placed in default, and in such case the court will ordinarily require as evidence of waiver an act or declaration of a very positive character.
    Defendant entered into a contract in writing with plaintiffs’ assignor to sell to him a certain lot of land for the sum of seven hundred and eighty dollars, payable in monthly installments of fifteen dollars each, and agreed to execute and deliver to the purchaser a deed for the premises upon the receipt of the full price wirb. five per cent, interest on unpaid balances. The complaint alleged the full payment of the purchase price with the exception of the sum of thirty-four dollars and sixty cents; the tender of this sum and a demand for and a refusal of the deed. At the trial plaintiff proved payment of seven hundred and eighty dollars, together with certain additional sums for taxes and interest. Subsequently he received a statement of further sums due for taxes and interest amounting to thirty-four dollars and sixty cents. The evidence produced by plaintiff tended, to show an honest attempt to obtain the deed to which he was entitled upon payment of the last installment; it also tended to show three offers to perform, coupled with ability to perform, provided defendant would do its part. It further tended to show that defendant received due notice in writing of plaintiff’s intention to demand performance on a certain date though this notice was erroneously excluded by the trial judge; the evidence further tended to show that at this time as well as previously and thereafter defendant made no effort to perform and that it would not then perform on grounds other than the ground that plaintiff had not performed on its part. Held, that a dismissal of the complaint on the ground that defendant was not in default until plaintiff had actually paid, over the money and given defendant a fair opportunity thereafter to prepare a deed, and on the further ground that it affirmatively appeared that plaintiff had neither actually given a check nor tendered the cash was error, and a judgment entered on the dismissal of the complaint should be reversed and a new trial ordered.
    Appeal by the plaintiffs from a judgment of the Municipal Court, borough of Manhattan, second district, in favor of the defendant, entered upon a direction of the court dismissing the complaint at the' close of the plaintiffs’ case in an action brought before the court and a jury.
    Abraham H. Sarasohn, for appellants.
    George F. Alexander, for respondent.
   Lehman, J.

The defendant entered into a contract in writing with the plaintiffs’ assignor to sell to him a certain lot of land for the sum of $780, payable in monthly instalments of $15 each and agreed to execute and deliver to the purchaser a deed for the premises upon the receipt of the full price of $780, with five per cent interest on unpaid balances. The complaint herein alleges the full payment of the purchase price with the exception of the sum of $34.60; the tender of this sum and a demand for and refusal of the deed. At the trial the plaintiff showed that the sum of $780 had been paid, together with certain additional sums for taxes and interest. On September 8, 1915, he received a statement of the further sums due for taxes and interest, amounting .to the sum of $34.60. He testifies that on receipt of this statement he went to the office of the defendant at Jamaica and spoke to a man apparently in charge of the office and told him he had come to pay the amount demanded in the statement and offered him the money and asked for the deed. This man told him he would let him know. Thereafter he again went to this office and was told that the office of president was at 292 Broadway, Brooklyn. He there saw the president and told him he wanted to pay up and get his deed. The president told him that does not concern our office, you must pay the money in Jamaica. ” Plaintiff then went over to Jamaica and demanded his deed, but was told that the president was not there. Thereafter, on October twenty-first, he sent a letter to the Jamaica office and informed them in writing that he wished the matter settled and notified the company that: ‘ ‘ Tuesday, October 26th, I will be at your office at Jamaica between 1 and 2 P. M. and I therefore demand of you to have my deed ready for me.” This letter was excluded as a self-serving declaration. He went to the' office at Jamaica at the time stated in the letter and was informed that the president was in Pittsburg and that. they would reply to his letter or demand in a day or two. He never got a reply. On cross-examination the plaintiff testified that he never actually offered to give the defendant specie, but he had a check book with him; was ready to write out a check, and said: I have the check, give me the deed.” At the close of the plaintiffs’ case the learned trial justice dismissed the complaint on the ground that the defendant was not in default until the plaintiff had actually paid over the money and given the defendant a-fair opportunity after such payment to prepare a deed, and on the ground that it affirmatively appeared that the plaintiff had neither actually given a check nor tendered the cash.

It seems to me that this ruling of the trial justice was erroneous. Undoubtedly the defendant could not be put in default until the plaintiff had tendered performance on his part and given the defendant opportunity to perforin on its part. He was not, however, obliged to pay over the last instalment under the contract before he received the deed. The payment of the last instalment and the delivery of the deed were concurrent conditions under the contract.' The defendant would be put in default by a tender of the last instalment followed by a refusal on its part to accept the tender and deliver the deed after due opportunity to prepare it. It is not claimed in the complaint that the defendant was in default by failure to deliver the deed immediately upon the tender of the check in September. The contract contains no definite time for the delivery of- the deed and the defendant could not be put in default until it had a reasonable opportunity to perform. The complaint claims that the tender, the demand and the refusal were made on or about October twenty-sixth. At that time the plaintiff had already twice offered to perform and then given notice in writing that he would appear ready to perform on October twenty-sixth. He appeared at the defendant’s office at the time set and the defendant was again not ready to deliver the deed, but promised to inform plaintiff when it would deliver the deed. Inasmuch as he was informed at that time that the president was not present and could not deliver the deed, it would have been purely an empty formality for him to offer bis money provided the deed would be delivered.

The defendant, however, claims that a tender of performance of an agreement to pay money can be made only by an actual physical tender of the money. Strictly speaking, this statement of the law is probably correct, but it is also true that a party may not only waive a tender but he may undoubtedly also waive any formalities or strict requirements of a tender. Whether the formalities of a strict tender • have been waived in any case depends upon the intention of the party as evidenced by its acts. Where one party seeks unconscionably to put another party into a technical default, it is a fair inference of fact that' the second party does not intend to waive any technical rights which he may have and which will prevent his being placed in default, and the courts in such cases will ordinarily require as evidence of waiver an act or declaration of a very positive character. In this case, however, the evidence produced by the plaintiff, if true, would show, an honest attempt to obtain the deed to which he was undoubtedly entitled upon payment of the last instalment. It would show three offers to perform, coupled with ability to perform, provided the defendant would do its part. It would further show that the defendant received due notice in writing of the plaintiff’s intention to demand performance on October twenty-sixth, though this notice was erroneously excluded. It would further show that at this time, as well as previously and thereafter, the defendant made no effort to perform and showed that it would not then perform on grounds other than the ground that the plaintiff had not performed on its part. These acts are, I think, sufficient to show an intent not to demand a formality with which the plaintiff could easily have complied, and which, in any case, would have remained an empty formality.

Judgment should, therefore, be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

Weeks and Delehakty, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  