
    Price against McGown.
    Default having been made by the purchasers in performing the conditions of a contract for the sale of lands, a new contract was entered into between the parties for the sale of the same lands, and left in esarow, to take effect on the payment of a sum of money the next day: Held, that the second contract, although conditional, superseded the first, and that the condition not having been performed, neither contract could be enforced.
    Appeal from the supreme court. Bill in the late court of chancery for the specific performance of a contract. The facts were that the defendant Andrew McQown entered into an agreement in writing without any date, but which was delivered in February or March, 1834, in the words and figures following:
    
      
    
    
      Sale of high land east of Third avenue at $38,000.
    “All marsh meadow, and water right thrown in, subject to the lease and conditions to Minell Platt: payment $35,000, to remain on bond and mortgage at 6 per cent, on or before ten years ; interest half-yearly. Interest to commence 1st May, 1834; McQ-own to receive rents to that time ; $15,000 to be secured by collateral mortgage on other property on the inland of New-York, satisfactory property to McQown; $3,000 to be allowed to W. and P. for services rendered to McQown.
    (Signed) Andrew McQown.
    Enoch Wiswall.
    Francis Price.”
    It was admitted by McQown’s answer that the land thus vaguely indicated was the same as that described by the subsequent writing hereinafter mentioned. This contract was to be executed, by the understanding of the parties, on the 1st of May, 1834. Wiswall and Price, finding that they would not be able to perform the contract on their part by that time, applied to McGown for an extension of the time, for performance, and it was therefore agreed between them, without any valuable consideration, or writing, that the time for the performance of said contract should be extended till the 1st day of November, 1834. A similar arrangement was made, by which the time for performance, on the part of Wiswall and Price, was further extended by parol to the 15th of November, 1834. Wiswall and Price were not ready to perform the contract on their part at either of those periods.
    After the 15th of November, 1834, McGown informed Wiswall that he could give the title to the lands, but in consideration of the trouble to which he had been put by Wis-wall and Price, they must give to him four lots of ground, to which Wiswall and Price assented. At this time Isaac Adriance acted as counsel for the respondent, and on the 9th of December, 1834, an agreement in writing was drawn up by Mr. Adriance, and assented to by McGown, upon the express condition that $4,000 in money should be paid on that day. This agreement was signed by all the parties but left in the hands of Adriance upon that express condition, and was to be inoperative unless the money was paid on that day. McGown caused a deed to be prepared and to be ready for delivery in case the condition of the agreement of the ninth of December should be complied with, and the money should be paid. The money was not paid on that day. On the tenth of December, the defendant instructed Mr. Adriance, that if the money should be paid to him on that day he might receive it, and deliver the papers ; but if not, he would have nothing more to do with it. The money was not paid on the tenth of December, and the defendant declined to have any further negotiation with Wiswall and Price on the subject.
    In the month of January, 1835, the defendant conveyed the premises in fee to Edward Sandford. The cause was heard by the late Assistant Vice-Chancellor Hoffman, who adjudged that the respondent, McGown, was liable specifically to perform his agreement with Wiswall and Price ; and that as he had disabled himself from performing it, he should pay to them such damages as they had sustained by reason of his non-performance thereof. The respondent, McGown, appealed. The plaintiffs also appealed from a part of the decree. Afterwards Wiswall departed this life, and Price continued the prosecution of the suit as survivor.
    The appeals were heard in the supreme court, and the decree of the assistant vice-chancellor against McGown, was reversed, and the bill of complaint was dismissed with costs. (2 Barí. S. C. R., 277.)
    From this decree of the supreme court Price appealed to this court.
    
      James T. Brady, for the appellant.
    
      Edward Sandford, for the respondent.
   Gardiner, J.

The bill in this case was filed to compel a specific performance of a contract for the purchase and sale of land in the city of New-York. There were two agreements. The first made in February, 1834, which was continued by the verbal agreement of the parties until the fifteenth of November, of the same year, at the request and for the benefit of the purchasers. No time was fixed by the memorandum executed by the parties for the performance of this agreement, but by a verbal understanding it was to be executed on the first of May following its delivery.

The complainants were not ready to perform on the day last mentioned, and a negotiation subsequently took place ■between the parties, which resulted, on the ninth of December, in an agreement which the complainants allege to be a mere continuation of the first one above mentioned, and which the defendant in his answer in response to the bill declares to be a new contract, one intended by all parties as a substitute for the former.

The answer must prevail unless disproved; it is, however, sustained by Adriance, the only witness examined, and by the intrinsic probabilities of the case. The last agreement is set forth in the bill and differs from the one originally made, in the premises to be conveyed: of course, in the consideration : in the amount to be collaterally secured, as well as the time of performance. It is, however, immaterial whether the agreement of the ninth of December is viewed as an alteration of the former one, or a substitute for it. It was the only contract in existence, in operation between the parties from the time of its execution—the only one to be performed by them.

This is conceded by the learned vice-chancellor, who has accordingly decreed in' conformity with its provisions. But the answer expressly avers that this agreement was left in escrow with Adriance, to become operative upon the condition that $4,000 should be paid by the complainants on the day of its execution. Adriance states that as the first contract had expired, he proposed that a new one should be drawn and left in his hands, so that if Reed who was expected to furnish or pay the money should do so on that day, the counterpart should be delivered to the vendors, Wiswall and Price, otherwise to be null and void. The time of payment was thus definitely fixed, as the condition upon which the new agreement should become operative; whether the effect of the contract when established would be according to the construction of the vendees or vendor. There is no pretence that the condition was complied with on the day appointed for the performance. There was consequently no agreement between the parties. It is true that McDown said that he would notwithstanding receive the money on the day following, and not afterwards, and directed Adriance so to inform Reed, which was done accordingly.

But the payment was not made or offered on the day last mentioned, and I agree with the learned judge who delivered the opinion of the supreme court that the .extension for the performance of the condition was gratuitous and cannot be enlarged beyond the prescribed period, by the act of the court. This will dispose of the case without adverting to the other questions presented. I place my opinion upon the ground that the inchoate agreement of the ninth of December was a substitute for the one first made; that the condition upon which its validity was made to depend was never complied with by the complainant, and of course, there was no contract which could be enforced against McGfown in equity or elsewhere.

The decree of the supreme court should be affirmed.

Mason and Taggart, Js., dissented; all the other judges concurring,

Judgment affirmed.  