
    Constant White and Louisa White, Respondents, v. James C. Truman, Appellant.
    
      Contract of sale of land — waiver of a tender of a deed.
    
    Where the vendee, in a contract for the purchase and sale of real estate, notifies the vendors, prior to the date when the deed is to be executed, that he wishes to have its execution postponed as he might sell in the meantime, and wbuld then- wish the deed to he made direct to the purchaser, and subsequently fails to perform the contract, claiming on the trial of an action brought by the vendors to recover damages for the venders breach of the contract, simply that the contract has been rescinded and abandoned, he cannot on appeal insist that, as no deed was tendered to him before the commencement of the action, ' the vendors did not show ability and willingness to perform the contract on their part-.-
    Appeal by the defendant, James C. Truman, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 19th day of August, 1896, upon the-decision of the court rendered after a trial at the Westchester Special Term.
    
      Eugene Treadwell^ for the appellant.
    
      FranMrn, Goioeh, 'for the respondents.
   Hatch, J. :

The question presented ih this case is very narrow in. compass. It is agreed that the parties entered into a written contract, under seal, whereby the defendant agreed to purchase, and the plaintiffs ■agreed to sell, a certain farm, situate in the town of Yorktown, county of Westchester, for the sum of $12,000, payable at stipulated times. At the same time another agreement under seal was made and executed between the same parties, whereby it was agreed that in case of the failure of either party to fulfill the terms and conditions of the first contract, the party so failing should pay to the other party the sum of $3,000 as liquidated damages for ‘thé breach. The court found that the defendant failed to fulfill the contract according to its terms, and that, prior to the commencement of this action, he notified plaintiffs that he did not intend to perform the contract upon his part. The evidence is sufficient to support these findings. It appeared, without dispute, that prior to the date when the deed of the property was to be executed and delivered as the contract required, the defendant requested that its execution be postponed, and that, in pursuance of such request, it was not executed. The defendant now insists that there can be no recovery under the contract, because no deed was made and tendered before the commencement of this action, and plaintiffs did not show ability and willingness to perform. The evidence tends to show that before the parties were to meet and execute the deed the defendant requested that it be not executed, as he might sell the farm in the meantime and would wish the deed made directly to the purchaser. Subsequently he refused to fulfill the contract and requested its cancellation. This act dispensed with the necessity for executing and tendering the deed. (Baumann v. Pinckney, 118 N. Y. 604.) The contract recited the existence of the property and referred in terms to the deed that was to be executed and the description which the same was to contain. The proof was that this deed was not made out and tendered for the reason that the defendant failed to give the name or fulfill the contract; that .the-parties were always ready to make the deed.

The defense proceeded entirely upon the theory that there had been a rescission and abandonment of the contract, and no claim was made that the defendant could not obtain what he contracted for, if he was willing upon his part to fulfill and had not repudiated his engagement. This testimony was, therefore, sufficient to uphold the finding that the plaintiffs were ready and willing to fulfill their contract'and execute a good and sufficient- deed: Nothing- further' was necessary to enable the plaintiffs to maintain this action. (Baumann v. Pinckney, supra; Skinner v. Tinker, 34 Barb. 333; Woolner v. Hill, 93 N. Y. 576.)

No point was made by the defendant that, the plaintiffs, did not have title to. the property or that the deed which they were willing to execute would not convey good title to the land. The doctrine of Bigler v. Morgan (77 N. Y. 312) and kindred cases, is, therefore, without application.

The judgment should be affirmed, with costs.

All concurred.

. Judgment affirmed, with costs.  