
    Michael Frazier versus Jabez Cushman.
    Tlu defendant had contracted to convey to the plaintiff a parcel of land on pay ment of a sum of money within a stipulated period of time, and at the expiration of the time the plaintiff called on him and informed him that he could then hire the money, and would do so if the defendant wanted or desired it; and the defendant dissuaded him from hiring the money, observing that he might pay it at any time, and that no advantage should be taken of it, but the deed should be given on such payment, as if made within the time; and after-wards the plaintiff tendered the money, and the defendant refused to accept it, or give the deed; it was holden, no action lay for the plaintiff.
    This was assumpsit for money had and received. The declaration contained also a special count upon the following agreement, as signed the 12th of February, 1808, namely ; “ This may certify that I, Jabez Cushman, of, &c., do hereby promise and engage to give and execute a deed of a certain piece or parcel of land bounded, &c., to Michael Frazier, provided he, the said Michael, pay me, the said Jabez, one hundre 1 and sixty-three dollars and fifty cents within eighteen months from the date hereof, with the interest thereof from this date. I say, on his the said Michael’s paying me the said sum and interest as above mentioned, and at the day, I will give him a deed,” &c.
    At the trial of the action, which was had before Thatcher, J., at the last October term, upon the general issue, the [ *278] * plaintiff produced the said agreement, and proved by witnesses, that, within the eighteen months named in the agreement, he called on the defendant, and informed him that he could then procure of a Mrs. Ilsley the money stipulated in the agreement, and so obtain from the defendant the deed therein promised, and that he would then get the money, if the defendant wanted it, or wished for it. The defendant told him he had belter not hire the money, and, as he must pay interest for it, he had better go to work and earn it; that the land was safe in bis, the defendant’s, hands, and the plaintiff might pay the money mentioned in the agreement at any time after the expiration of the eighteen months ; that he would take no advantage of him for not paying it within the said term ; and that, upon such payment, he, the defendant, would give him a deed of the land in the same manner as if the money were paid before the expiration of the term. It was further proved on the part of the plaintiff, that, in June or July, 1812, he tendered to the defendant $ 207 in satisfaction of the sum mentioned in the agreement and the interest, and demanded of the defendant a deed of the land ; and that the defendant refused to accept the money or to give the deed.
    The defendant proved, that, after the expiration of the eighteen months, namely, in 1811, the plaintiff called on the defendant, and told him that he had given up all hope of being able to pay the money mentioned in the agreement, and considered the land as belonging to the defendant ; and he solicited the defendant’s son to intercede with his father and induce him to make the plaintiff a present, as he said he thought the land was worth more than the consideration mentioned in the agreement.
    The jury returned a verdict for the plaintiff, subject to the opinion of the Court upon the foregoing facts ; and judgment was to be rendered upon the verdict, or a new trial granted, as the opinion of the Court should be.
    Mellen, in support of the verdict, cited the authorities in the margin. 
    
    
      Whitman, for the defendant.
    
      
      1 Esp. Rep. 35, 53. — 1 Johns. Cas. in Err. 22. — 3 Johns. Rep 528. — 3 D. & E 683. — Doug. 694.— 5 Mass. Rep. 67. — 4 Cranch's Rep. 239.
    
   * Parker, C. J.,

delivered the opinion of the Court. The plaintiff has endeavoured to show, by the facts which appear in the report, that, in pursuance of his contract with Cushman, he did what in law should be considered equivalent to a tender of the money which was to entitle him to a deed.

But this cannot be established. The most that was done by the plaintiff was, to inform Cushman that he was able to procure the money by borrowing ; and the most that was done by Cushman was, to dissuade the plaintiff from borrowing or hiring the money, and to make him understand that no advantage should be taken of the delay of payment. This conduct may have been artful and disingenuous on the part of the defendant, designed to put the plaintiff off his guard, xnd to deprive him of the benefit of his contract. But we cannot give more effect, in a legal point of view, to the acts of the parties, because one of them had more understanding or artifice than the other. A court of equity might possibly afford relief; but we can only administer the law.

The authorities cited by the plaintiff’s counsel to this point are bottomed upon a very different state of facts. In all those cases, the party intending to perform the contract on his part proved that he was actually ready and had offered to perform, and that the other party had evaded or refused to receive the money offered, or other thing to be tendered, with a declaration, or acts amounting to it, that he did not intend to perform the contract on his part. In such cases it has been wisely determined, that, as an actual tender would be idle and useless, if not impossible, the readiness and offer shall be a legal substitute. He who prevents the performance of a contract shall not take advantage of its non-performance.

But there is another point, upon which the plaintiff relies, which, although apparently well supported by authorities, we wish further time to consider of. According to the evidence reported, Cushman gave time for the performance of the contract by the plaintiff, after it had expired according *to the letter of [*280] it. It was in evidence, that he expressly declared that he would receive the money at any future day, and convey the land according to his written contract.

If paroi evidence to this effect is admissible, and the fact is not rendered unimportant by other evidence on the part of the defendant,the plaintiff will be entitled to recover. But there was testimony, that, subsequent to the paroi agreement, the plaintiff relinquished all claim under the contract, in consequence of his inability to raise the money. Now, as the enlargement was proved by paroi, the agreement to this effect might be rescinded by parol; and, if the testimony to this last point was believed by the jury, their verdict cannot be maintained.

But we have no means of knowing whether the cause was put at all upon this point; there being no direction of the judge reported. There must, therefore, be a new trial, to ascertain whether the new bargain remained in force at the time of the actual tender of the money. If the jury, by their verdict, shall establish this point in favor of the plaintiff, the only question will be, whether the paroi enlargement of the time kept alive the contract; which question can be better discussed and settled standing by itself, than mixed up, as it now is, with several other questions.

New trial granted. 
      
       Vide note to Boyd vs. Stone, 11 Mass. Rep. 349.
     
      
      
        Borden vs. Borden, 5 Mass. Rep. 67.
     
      
       Vide Cuffvs. 1 M S. 21. — Warren vs. 3
     
      
      
         Monroe vs. Perkins, 9 Pick. 298.
     
      
      [† See Long on Sales, Rand's ed., 81-85. — Greenleaf on Evidence, 351 - 353. Blood vs. Goodrich. 9 Wend. 68. But see, also, Buel vs. Miller, 4 N. Hamp. Rep. 196 Ed.]
     