
    KLAWEITER v. HUBNER.
    (Supreme Court, General Term, Fifth Department.
    April 13, 1893.)
    1. Specific Performance—Conveyance to Third Person.
    A decree for specific performance of a contract to convey land will not be disturbed on appeal on the ground that performance was impossible because defendant had conveyed thq| land to a third person, where that fact is not alleged in the pleadings, and the only evidence of it given on the trial was a statement, on cross-examinaiton, by plaintiff’s witness that he put plaintiff’s contract on record after he “had learned that H. [defendant] had sold Ms property to another person.”
    2. Same—Performance by Plaintiff.
    Where plaintiff agrees to pay defendant a specified amount for property, a certain sum to bo paid in cash, and the balance by assuming a mortgage represented by defendant to equal the balance of the purchase money, and it afterwards appears that a greater sum is due on the mortgage, a tender by plaintiff of the difference between the amount of the purchase money and the amount actually due on the mortgage is a sufficient compliance with the contract by plaintiff' to entitle him to specific performance.
    3. Same—Tender of Deed.
    Where defendant in an action for specific performance of a contract to convey land to plaintiff agreed, at Ms own cost, to execute and deliver the deed, the fact that plaintiff tendered a deed for execution wMch was not in accordance with the contract does not excuse performance by defendant, as it was his duty to prepare the deed.
    Appeal from special term, Erie county.
    Action by Carl Klaweiter against John Hubner. From a judgment in favor of plaintiff, defendant appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBEB, and HAIGHT, JJ.
    George W. Cothran, for appellant.
    E. 0. Farrar, for respondent.
   HAIGHT, J.

This action was brought to compel the specific performance of a contract for the sale of real estate. The facts as found by the court are, in substance, that on the 3d day of March, 1891, the plaintiff and defendant entered into a written contract by which the latter agreed to sell to the former the premises in question for the sum of $1,700, which was to be paid as follows: $25 on executing the contract, $475 on or about the 1st day of April, 1891, and the balance by the purchaser assuming a mortgage upon the premises, held by a loan association, amounting to $1,200. On receiving the payment of $475 the defendant agreed, at his own proper cost and expenses, to execute and deliver to the plaintiff a warranty deed, free and clear of all incumbrances, except the mortgage for the sum of $1,200. The $25 was paid at the time the contract was executed, and on the 13th day of April, 1891, the plaintiff tendered to the defendant $341 lawful money of the United States, and demanded that the defendant should execute and deliver to him a deed of the premises. The plaintiff at the same time tendered to the defendant a deed containing full covenants of warranty, without any clause reserving the amount of the mortgage, or an assumption to pay it by the grantee. The defendant refused to receive the money, or to execute or deliver the deed. At the time of making the contract the defendant had represented to the plaintiff that the mortgage upon the premises was but $1,200, but at the time of the making of the aforesaid tender the plaintiff had ascertained that the mortgage upon the premises was for the sum of $1,500, and that $141 only had been paid thereon, leaving a balance unpaid of $1,359. The trial court found that the plaintiff was entitled to a specific performance, and ordered judgment accordingly.

It is claimed that the judgment cannot be sustained for the reason that the defendant had sold and conveyed the lands in question to another person, and that, therefore, performance of the contract was not in his power. No such fact was found by the trial court,, or requested to be found. The answer contains no such allegation, but instead thereof it alleges “that said defendant has always been, and now is, ready and willing to perform his part of said agreement." It is said, however, that the fact was made to appear upon the trial by the plaintiff’s own evidence. The only evidence bearing upon the subject appears in the testimony of the witness Frank, who was sworn as a witness on behalf of the plaintiff. On his cross-examinatian he stated that “I put this contract on record after I had learned that Hubner had sold his property to another person.” This expression was called out by the defendant, and not by the plaintiff. He does not state the source of his information, how he had learned of the sale, or whether it was anything more than a rumor or hearsay. Inasmuch as the trial court was not requested to find upon this question, we are inclined to the view that we cannot now from this evidence determine the fact for the purpose of overturning the judgment. It is further contended that the plaintiff had not performed the contract on his part, and was therefore not entitled to a judgment for specific performance. It is true that he agreed to pay the sum of $475 on or about the 1st day of April, 1891, and that instead of tendering that sum he only tendered the sum of $341. But the defendant had represented to him that the mortgage upon the premises only amounted to $1,200, whereas in fact it was for the sum of $1,500, and the sum of $1,359 still remained unpaid thereon. The amount tendered was the difference between the amount of the mortgage which the plaintiff had agreed to assume and pay and the purchase price, and under the circumstances we think it was a substantial compliance with the.provisions of the contract. The deed tendered to the defendant by the plaintiff wras not in accordance with the contract, and the defendant was under no obligation to execute the same. But he had agreed at his own proper cost and expenses to execute and deliver a proper deed. "Upon the tender to him of the money it became his duty to perform Ms agreement in this regard. The judgment should be affirmed, with costs. So ordered. All concur.  