
    McWilliams vs. Long and Poillon.
    A vendor, who wishes to rescind the contract of sale or to hold the purchaser to a performance on the day appointed, should have his deed prepared and executed, ready to be delivered on the payment of the purchase money.
    When the time for the payment of the purchase money is not an essential ingredient in, or inducement to, the execution of a contract of sale and purchase, the payment or tender may be made within a reasonable time after the day named.
    A purchaser, seeking the aid of a court of equity to enforce .a specific performance, must apply promptly. If he slumbers upon his rights for five years after becoming entitled to a conveyance, a specific performance will not be decreed, but he will be left to his remedy, if any he has, by an action for damages.
    THIS was an action brought by one of the parties to an agreement, to be relieved therefrom.
    
      Sickles & Gushing, for the plaintiff.
    
      J. O. Leveridge, for the defendants.
   Leonard, J.

The plaintiff brings this action to be relieved from an agreement between himself and the defendant Long, for the sale of a lot of land at the corner of Broadway and 67th street, made March 9th, 1851, which the defendant Long assigned to the Messrs. Poillon, and which was recorded April 5th, 1851, and is a cloud, as the plaintiff alleges, upon his title, and prevents him from improving or selling his lot. He alleges that he has always been ready and has offered to perform the agreement on his part, but the defendants neglect and refuse. The defendants, admitting the agreement, assignment and record, deny the other facts on which the plain-cliff claims relief. The Messrs. Poillon allege a tender of performance and a continued readiness on their part, and demand a specific performance. The allegations constituting a counter-claim are all put at issue by the plaintiff's reply.

The plaintiff, and the defendants, except Long, who claims no interest in the question, have respectively been examined as witnesses in their own behalf, and they are entirely at variance in respect to tenders and offers of performance which the defendants Cornelius and Alexander C. Poillon claim to have heen made by them to the plaintiff. It is not disputed, however, that the plaintiff was notified, at his residence, on the premises in question, on behalf of these defendants, to attend at the office of their attorney on the day appointed for the consummation of the agreement, for the purpose of carrying it into effect; and that the plaintiff, with his wife, did attend at the place requested, with a deed of the premises duly prepared and ready for execution, between the hours' of two and three o’clock P. M. on that day. That the defendant Alexander C. Poillon met the plaintiff there shortly after three o'clock P. M. and that the plaintiff showed him the deed, to which no objection was made, and declared himself ready to execute it, together with his wife, and to deliver it when he saw the money which was to be paid to him. That the defendant Alexander C. Poillon showed the plaintiff a check on a bank in this city for the amount due, and offered to deliver it in payment; that the plaintiff refused so to receive it, and insisted upon payment in money. That the plaintiff, by agreement with the said Alexander C. Poillon, waited at the house of a friend who resided near the said office, in company with his wife, till about nine o’clock P. M. to receive the money due him, and to execute and deEver the said deed. That.the attorney of the said defendants, during the evening, offered, on their behalf, to pay the amount due, partly in gold and partly in his own bank check, but the offer was dechned. This offer was made to the plaintiff’s wife, but the plaintiff was in an adjoining room, and the offer was probably decEned by his authority. Ho other offer of performance was made by either party, after the plaintiff arrived at the office of the defendants’ attorney, on the day when performance was due by the terms of the contract.

The defendant Cornelius Poillon testified, at the trial, in behalf of the defendants, that at about half past eleven o’clock A. M. of the day when the contract was to be performed, he tendered to the plaintiff the sum of $1450 in gold, at the premises in question, and demanded a deed for the land. That the plaintiff refused the money, and said he had made up his mind not to sell his land. That no one except the plaintiff and his wife, and he thinks also two or three small children, were present, besides himself. The defendant Alexander 0. Poillon also testified, at the trial, in behalf of the defendants, that he, in company with Mr. Helium, went to the residence of the plaintiff at the premises in question, on the next day after the interview at the office of the defendants’ attorney, with the amount due to the plaintiff, in gold, or gold and silver, and tendered it to the plaintiff and demanded a conveyance of the land. That the plaintiff refused to receive the money or make the deed, because payment had not been made at the time appointed in the contract. Mr, Helium also testifies in behalf of the defendants that he wag present and saw the tender last mentioned, but he did not know the amount tendered. The plaintiff, testifying as a witness in his own behalf, denies the truth of both these statements. He testifies that he never saw the defendant Cornelius Poillon until the time of the trial; that neither Cornelius nor Alexander ever made any tender of payment at his residence, at any time or in any manner.

The plaintiff has not established a case entitling him to any relief. If he desired to rescind this contract, or to hold the defendants to performance on the day appointed, it was his duty to have his deed prepared and executed. His wife might possibly have refused to sign it, as he had agreed she should, and thus put it out of the plaintiff’s power to perform his part of the agreement. This prerequisite to declaring the contract forfeited or rescinded, as against the. defendants, is wanting. Whether the plaintiff had any right to claim that performance could not be demanded by the defendants after the day appointed by the agreement, it is not necessary to decide; although I am of opinion that the time of the payment was not an essential ingredient in, or inducement to, the execution of the contract, and it might therefore be performed within, a reasonable time after the day named. (Wells v. Smith, 7 Paige, 22.)

[New York Special Term,

April 10, 1860.

Leonard, Justice.]

I consider the evidence as to the tender testified to by Cornelius Poillon as balanced by the counter testimony of the plaintiff. It is certainly singular that no reference was made to this transaction, at the subsequent interview at the office of the counsel for the Messrs. Poillon; or that when an interview had been appointed to take place on the same day, at the office of their counsel, they should not have on hand the same gold with which the tender had previously been made.

The evidence of the tender made by Alexander C. Poillon on the next day, was corroborated by that of Mr. Kellum, and this fact is to be assumed as established in favor of the defendants.

The length of time which elapsed before the defendants CorneEus and Alexander C. Poillon made their claim in court for a specific performance of this contract has, however, debarred them from the rehef which they claim. Assuming that the tender which was made by Alexander C. Poillon on the third of ¿Tune, 1851, was in time, and gave the defendants the right to the demand the aid of a court of equity to compel the plaintiff to convey to them the land, it does not follow that they can slumber in that position for five years, to ascertain whether the price of the land appreciated or declined, and then invoke the same rehef from a court of equity. This reEef, if desired, should have been sought promptly. The defendants must, therefore, take their remedy, if any, by an action for damages.

There was no rehef sought by the complaint in any manner affecting the rights of the defendant Long injuriously, and there was no occasion for him to have defended.

The complaint and the counter claim are therefore dismissed without costs to either party as against the other.  