
    LEOPOLD BEYER, Appellant, v. PHILIP BRAENDER, Respondent.
    
      Vendee of real estate, when action by to recover money paid on account of purchase, not maintainable.
    
    Where a vendor of real estate is ready and able on the day specified in the contract of sale for its completion to give a good and marketable title, and tenders to the vendee the deed called for by the contract and demands the payment of the purchase money, and the vendee refuses to take the property, accept the deed and make the payment, on the ground that the vendor cannot give a good and marketable title, the vendee cannot maintain an action to recover the sum paid to the vendor at the time of the making of contract pursuant to its terms on account of the purchase money, without showing that the vendor had waived his right to demand performance on the law day, and his right acquired by such tender, demand and refusal, to retain the sum so paid and had left the closing of the contract open, and while it was so open had either put it out of his power to give, or had on demand refused to give title.
    In the case at bar, defendant was able and ready on the law day to give a good and marketable title; he on that day tendered the deed called for by the contract and demanded the purchase money; plaintiff absolutely refused to take title, accept the deed, or make payment. No waiver by defendant of any of his rights, nor any leaving open the closing of the contract was shown; but it was shown that before the commencement of the action defendant had put it out of his power to give title to plaintiff. Held, that plaintiff could not maintain this action, which was to recover from defendant the sum of money paid on account of the purchase money under the terms of the contract at the time it was entered into.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.
    
      Decided January 6, 1890.
    Exceptions taken by the plaintiff to the dismissal of the complaint ordered to be heard in the first instance at the general term.
    
      Martin & Smith, attorneys, and George A. Strong of counsel, for appellant, on the questions considered in'the opinion, argued :—
    
      I. Assuming that the title was good, plaintiff is nevertheless entitled to recover back his deposit, if defendant was liable to an action for specific performance, at the time when he divested himself of the title, and thus became unable to carry out the contract. That is to say, a vendee may recover back his deposit upon the same showing which would have entitled him, had the vendor remained owner of the land, to a decree for • a specific performance. Meth. Epis. Church v. Thompson, 108 N. Y. 618. This is a proposition which commends itself by its fairness and logic. So long as the vendee may still call for the land, and compel its conveyance, it cannot be that the vendor may divest himself of the title, and then urge this as a reason for confiscating the deposit. We shall, therefore, submit two reasons why, at the time when defendant sold this land, plaintiff had not yet lost the right to require a conveyance of it.
    II. There never was an absolute, but only a qualified, or conditional, refusal by plaintiff to perform, and a refusal that was justified. This gives no right to the vendor to forfeit the vendee’s deposit. The vendee’s counsel prior to Oct. 10, 1888, the law day, informed the vendor’s counsel that he had doubts about the title. On the 10th the vendee’s counsel asked for an adjournment of “ a few days,” as he was not satisfied with the title, but, as at present advised, would reject it. Willis v. Dawson, 34 Hun, 492. When this request was refused, and not till then, plaintiff’s counsel refused to take the deed. That does not change the character of the refusal. It was still a refusal to perform, because the vendee needed a few days more to consider and investigate the question as to the title. These facts bring the case within Davison v. Associates, 71 N. Y. 337-8.
    III. Had defendant, on Oct. 10th, acquired a right to forfeit plaintiff’s deposit, without further ceremony, he lost that right by what subsequently occurred between the parties. These facts show that negotiations had been resumed between the parties. The one claimed that his title was good, and urged acceptance of it; the other claimed that it was bad, and called for a return of the deposit, offering to divide the expense of searching the title. Whichever was right in his claim, the resumption of negotiations opened the whole matter once more, and waived any previous forfeiture, if one existed. Not a case can be found to the contrary, holding that after this the vendor could suddenly, without any warning, revert to the previous forfeiture, sell the land, and pocket the deposit. The authorities are directly the reverse. Myers v. De Mier, 52 N. Y. 648; Walton v. Meeks, 41 Hun, 316; Dillon v. Masterton, 39 Super. Ct. 136.
    
      Bartlett, Wilson & Hayden, attorneys, and Philip L. Wilson of counsel, for respondent, on the questions considered in the opinion, argued:—
    I. After the plaintiff,' on the 10th day of October, 1888, refused to receive the deed, which defendant tendered, defendant had a perfect right to sell this property. Ketchum v. Evertson, 13 Johns. 359; Page v. McDonnell, 55 N. Y. 299; Smith v. Rogers, 42 Hun, 114; Simon v. Kaliske, 6 Abb. N. S. 224.
    II. The plaintiff cannot recover in this action, unless he shows that there was a reasonable doubt as to the title of the defendant. Methodist E. Ch. Home v. Thompson, 108 N. Y. 618.
    III. It is a perfectly recognized principle that a default may be waived, and that courts of equity may relieve in many cases from the effects of a default and decree specific performance, but it is in an action where plaintiff comes into court seeking to perform his contract, alleging his present willingness and excusing his past. default. Such are the cases cited on plaintiff’s brief below. Davidson v. Associates, 71 N. Y. 833; Myers v. DeMeir, 52 Ib. 647; Dillon v. Masterton, 39 Super. Ct. 133. The complaint fails to show that plaintiff was ever ready or willing to perform, or that defendant ever refused to perform—it rests, and must rest, on the allegation that defendant was unable to give a good and marketable title.
    IV. What took place subsequent to the law day is to be regarded as an effort, if possible, to avoid a lawsuit in way of a compromise, and may be held as an indication of willingness on part of defendant to convey if plaintiff will re-consider, but plaintiff refuses. In Coddington v. Wamsley, 1 Hun, 585, affirmed 60 N. Y. 644, last page of opinion the court says : “ The expression of willingness by the defendant, after expiration of the specified time to sell to plaintiff, but without extension of the time specified in the agreement, and in the absence of any new agreement, is no waiver as to him.”
   By the Court.—Ingraham, J.

The contract for the sale of the property was to have been performed on the 10th of October, 1888, and on that day counsel for the purchaser requested further time to examine the title to the property, which being refused, counsel for the vendor tendered a warrantee deed of the premises in question and handed the same to the counsel for the vendee who examined it and handed it back to the counsel for the vendor saying: “We decline to accept this deed. We refuse to take this title. I do not consider that Mr. Braender has a good and marketable title to these premises,” to which counsel for the vendor replied: “ Very well, we stand upon our contract and our title.”

Subsequent to that time the counsel for the respective parties had correspondence as to the purchaser accepting the title, but on October 20th, 1888, counsel for the vendee stated that he could not take the title, and then proposed to cancel and rescind the contract, and that the defendant should repay the $1,000 which had been paid on the execution of the same, and pay $100 for the examination of the title, which was refused; and this action is brought to recover the amount paid on the execution of the contract.

At no time did the plaintiff ever ofier to perform, nor does it appear that he was ever able to perform, his contract. He rests his refusal solely in a defect in the title. It was not claimed on the argument before us that the defendant’s title was defective or not marketable. It further appeared that on the 18th of October defendant had executed a contract to sell the same premises to another person, which contract was finally completed by the delivery of a deed on the 30th of October of the same year.

To entitle plaintiff to recover in this action, he must show that the defendant failed to complete his' contract; the defendant must be in default.

The facts, however, conclusively show, that the defendant was not in default, but that it was the plaintiff who was in default. Defendant was ready to complete his contract, deliver a deed of the premises on the day that the contract was to be completed and from that time down to the 30th of October, when he conveyed the premises to another purchaser, could have at any time complied with his contract. On the refusal of the plaintiff to accept the deed on the 10th of October, the defendant was justified in assuming that the plaintiff had broken the contract and treated it as at an end, and that followed by the absolute refusal to accept the title on'the 20th of October, and the demand for the repayment of the money paid on the execution of the contract and the damages sustained by the plaintiff was a final breach of the contract. The subsequent letters between counsel for the parties did not in the slightest degree change the relations that then existed. The request in the letter of October 25th, was merely for the sale of another house, and had nothing to do with the premises in question.

The exceptions should, therefore, be overruled and judgment ordered on the verdict, with costs.

Sedgwick, Ch. J., and Fbeedman, J., concurred.  