
    Charles W. Hughitt, Resp’t, v. Frank M. Hayes, Rec’r, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1892.)
    
    Specific performance—Set off.
    Plaintiff, in April, 1887, contracted orally with a hank for the conveyanee to him of certain premises, and in June thereafter took possession under the contract and made valuable improvements. The bank authorized its cashier to execute a conveyance, which plaintiff requested but which was delayed from time to time without his fault. The bank failed, having a balance to plaintiff’s credit of §2,204, accumulated for the purpose of paying for the land. Plaintiff also held as assignee a certificate of deposit for §500, which was purchased with the knowledge of the cashier for the same purpose, and an account for services rendered and materials furnished before the failure for §19.04. Held, that und -r equitable rules plaintiff was entitled to have the several claims held by him against the bank at the time of its failure applied as a credit upon the purchase price of the land.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of plaintiff.
    
      Frank C. Ferguson, for app’lt; W. E. Hughitt, for resp’t.
    
      
       Affirming 46 St. Rep., 964.
    
   Andrews, J.

The findings by the referee that an oral contract was entered into between the plaintiff and the bank in April, 1887, for the sale by the bank to the plaintiff of the premises in question for the.sum of $3,150 ; that in June thereafter the plaintiff took possession under the contract and made large and valuable improvements upon the land with the knowledge and consent of the bank ; that the bank authorized its cashier to execute a conveyance to the plaintiff pursuant to the contract; that prior to its failure the plaintiff requested the cashier to execute a conveyance, which was delayed from time to time without fault of the plaintiff; that the plaintiff, until the failure of the bank in 1887, was willing and ready to fulfil the contract on his part, and that after such failure he repeatedly requested the receiver to make such conveyance and offered to perform the agreement on his part, with the proviso that the plaintiff’s claims against the bank should be allowed and credited on the purchase price of the land, were not excepted to and must, therefore, be taken as undisputed facts in the case.

The claim of the plaintiff to have the demands held by him against the bank at the time of its failure applied in reduction of the purchase price of the land, presents the only question of any difficulty arising upon the record.

The facts upon which the claim is based are also found and are not challenged by any exception. At the time of the failure of the bank there was a balance in the bank to his credit as depositor upon an open account of $2,204.05, subject to his draft He also held as assignee a certificate of deposit for $500 issued by the bank and payable on demand, and he had an account against the bank for $19.04, for money paid and for services and materials rendered and furnished at its request.

By the judgment these several sums were directed to be credited to the plaintiff on the purchase price of the property. The deposit account of the plaintiff with the bank commenced in 1887, and was drawn upon by the plaintiff from time to time in. the usual course of business. Shortly before the failure of the bank the plaintiff for the third time requested the cashier to convey the land pursuant to the contract, and he promised to make the conveyance without further delay. Thereafter the plaintiff accumulated his deposits in the bank for the purpose and with, the intention of using the balance to his credit in paying lor the land when the deed should be ready for delivery, which purpose .and intention was known to the cashier, but no application was in fact made, nor was any agreement made between the plaintiff and the bank that it should be so applied, or which would have prevented the plaintiff from applying the deposit to any other purpose.

The plaintiff purchased the $500 certificate with the view of applying it towards the payment for the land, and before its purchase the cashier of the bank knew of the proposed purchase and of the purpose of the plaintiff and assented thereto. •

The account of $19.04 was rendered by the plaintiff to the bank before its failure, and it was agreed between the plaintiff and the cashier, acting for the bank, that it should be adjusted on the final settlement for the purchase price of the land. It is not claimed that the plaintiff, at any time prior to its open failure in 1887, knew of the insolvency of the bank, or of any fact affecting its credit •

We are of opinion that under equitable rules the plaintiff is ■entitled to have the several claims held by him against the bank .at the time of its failure applied as a credit on the purchase price of the land. The claim is resisted in behalf of the general creditors. It is not pretended that the general creditors relied in giving credit to the bank upon its ownership of the land in question, or upon the particular fund represented by the purchase price in the contract of sale. It is insisted that equity requires that the plaintiff should pay the purchase price of the land to the receiver and stand with the other creditors in respect to his claim against the bank, sharing ratably with them in the distribution of the assets. But while it is the general rule in the administration of the estate of an insolvent, that equality among creditors is equity, it has never been decided either under the statute of set-off, or by courts of equity in applying the doctrine of equitable set-off, that the rule of equality among creditors requires courts to ignore the principle that only the balance, in case ■of mutual debts, is the real sum owing by or to the insolvent.

In this case both the claims were liquidated or capable of ascertainment by mere computation. It is true that the bank could not have maintained an action to recover the price of the land except upon formal tender of the conveyance, and, technically, its claim had not accrued. If nothing had occurred' except the making of the oral contract, it could have been enforced by neither party. But the part performance had taken the case out of the statute, and the plaintiff was entitled to enforce the contract, and without surrendering possession he could not question the right of the bank upon tendering a deed to recover the purchase price. By taking possession, and bringing the action, he affirms the contract .and admits his liability to perform it. Technically the debt owing by the plaintiff was not due when the bank failed, because the Tank had not conveyed or offered a conveyance pursuant to the contract. So, also, the claim of the plaintiff against the bank on the deposit and certificate could not be enforced without demand before action brought, and no demand had been made. Downes v. Phænix Bank, 6 Hill, 297. But claims in the eye of a court of equity will be regarded as due, notwithstanding the absence' of a technical demand, when equitable considerations require that they shall be applied each to the other. Smith v. Felton, 43 N. Y., 419 ; Richards v. La Tourette, 119 id., 54; 28 St. Rep., 609. The natural equity that cross demands1 shall be applied to the satisfaction of each other is the foundation of the statute of set-olf, but equity adjudges such satisfaction in cases not within the statute, under limitations which are very clearly stated by the chancellor in Holbrook v. Receivers, etc., 6 Paige, 220.

The insolvency of one of the parties is a material circumstance. There must be mutual debts and credits, and although the debt due from the insolvent may not be due, the creditor may waive the credit, and a court of equity will then apply it upon the debt from the insolvent, if that has matured.

In the present case the debts were not extinguished by agreement between the parties, but it is a strong equitable circumstance that it was understood between the plaintiff and the bank that the plaintiff was accumulating his deposit and that he was to purchase the certificate in anticipation of the payment he was to make upon the contract, and, acting upon this purpose, he did permit the deposit to remain and purchased the certificate. It is urged that as the plaintiff is seeking a specific performance, he must tender specific performance on his side. In most cases of set off there is a departure from the exact obligation of the respective parties. In case of set off of mutual debts, neither party performs the specific obligation which he incurred.

The substance of the contract for the sale of the land was, that the bank should convey, and that the vendee should pay the agreed price. It is no departure from its essential character than the bank or its receiver should accept as payment the money already in its hands, or its indebtedness to him on a money demand.

We think the judgment below is justified by the principles of equity and it should, therefore, be affirmed.

All concur.  