
    Frank P. Davis, Adm’r, App’lt, v. Charles H. Van Wyck, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1892.)
    
    1. Vendor and purchaser—Breach of contract—Tender.
    A sale of the premises by the vendor to a third person when neither party to the contract is in default waives a specific strict tender before an action for breach can be commenced.
    2. Same—Accounting.
    Defendant contracted to sell to plaintiff’s intestate certain real estate which he had purchased on foreclosure to secure certain debts due to him. A mortgage was to be given to him, but it was not given by the intestate who went into possession and made a payment on the contract. After his death a dispute arose as to the amount due and defendant sold the premises to another person. No formal tender had been made on either side. In an action for breach, Held, that a nonsuit was improperly granted; that there should have been an accounting and a balance- arrived at fixing the amount due.
    
      Appeal from, judgment in favor of defendant, entered upon a nonsuit, and from "order denying motion for a new trial on a case and exceptions.
    Action for breach of contract for the sale of real estate.
    
      S. S. Gowdey, for app’lt; William Van Namee (W. J. Groo, of counsel), for resp’t.
   Barnard, P. J.

On the 14th of December, 1867, the defendant agreed to convey to John M. Davis certain premises in Sullivan county. The consideration is left quite uncertain so far as it is expressed in the paper. The agreement signed by Van Wyck, defendant, is stated to be “ for the price this day paid for the same, together with the amount due me from the estate of said William Davis and also the amount he has this day agreed to pay the estate of William Davis, deceased, by an agreement with the administrators of said estate”

The agreement also recites that defendant had purchased the land to secure his claims against William Davis, deceased, and that he was to be indemnified by the sale to plaintiff’s intestate against an agreement which defendant had made to guarantee an agreement of John M. Davis to the administrator of said William Davis. There was paid $900 to Van Wyck, defendant, by John M. Davis on the 20th of January, 1871. John M. Davis had possession of the land from the date of the agreement and died in 1873. In 1877 the widow and family of deceased John M. Davis left the property. In 1877 the administrator had an interview with the defendant. The parties differed as to the debt due. The administrator said it was $1,300 about, and Van Wyck claimed it was over $2,500. The administrator expressed a willingness to pay the $1,300. Van Wyck refused to take it and in March, 1883, sold the property to one Case. There was no formal tender on either side and the agreement continued, Nelson v. Plimpton Fire-Proof Elev. Co., 55 id. Y., 480, and the question is reduced to this: whether a sale of the premises when neither party was in default waived a specific strict tender before an action for breach could be commenced.

The sale by Van Wyck put it out of his power to perform and is of itself a breach. A tender is not necessary where a party puts it out of his power to comply. There was proof tending to show that the claim of Van Wyck was a mortgage only, and as $900 had been paid on that there should have 'been an accounting and a balance arrived at, fixing debt and use and occupation reduced by payment. It was not too late to receive the testimony of the witness Glowdey.

The judgment should therefore be reversed and a new trial granted, costs to abide event.

Dykman and Peatt, JJ., concur.  