
    Thomas Flynn v. Mathew McKeon.
    Although a contract under seal fixes the time for its performance, that time may be extended by a parol agreement.
    Parol evidence of an agreement was introduced in the case, to prove a rescission of the sealed contract by mutual consent. When this is admissible, parol evividence to show re-instatement of the contract by like consent, is equally admissible ; and the evidence was to that effect.
    It is the duty of a vendor to prepare and tender a deed, if he insists upon a specific performance.
    When the vendor and vendee have fixed upon a time and place for performance, and the vendee attends, and is prepared to do all the contract requires of him, and the vendor neglects to attend, an action will lie by the vendee to recover the deposit-money paid by him.
    (Before Oakley, Ch. J., Hoffman and Slosson, J.J.)
    October 29;
    November 22, 1856.
    Appeal from a .judgment entered in favor of the plaintiffs, upon a verdict for the sum of $437.61.
    The action was brought upon the following contract:—
    “ Articles of agreement made and entered into the 27th day of October, one thousand eight hundred and fifty-four, between Mathew McKeon, of New Brighton, Richmond County, State of New York, of the first part, and Thomas Flynn, mason, of the second part, in manner following: the said party of the first part, in consideration of the sum of two hundred and fifty dollars to Kim duly paid, hereby agrees to sell unto the said party of the second part, all that certain piece or parcel of land, with the building thereon, situate and known as No. 115 East 22d street, in the city of New York, for the sum of three thousand two hundred dollars, which the said party of the second part hereby agrees to pay to the said party of the first part, as follows:
    The consideration above mentioned $250
    Upon the delivery of the deed 950
    And the balance by mortgage at seven per
    cent, interest, 2,000
    $3,200
    
      “ And it is further agreed by and between the said parties that the possession of said premises is to be delivered on the first day of November, 1854, and the deed to be delivered on the 15th day of November, 1854, and also, that the mortgage is to bear interest from the first day of November as above, and the said party of the first part, on receiving such payment at the time and in the manner above mentioned, shall, at his own proper costs and expense, execute and deliver to the said party of the second part, or to his assigns, a proper deed for conveying and assuring to him or them the fee simple of the said premises, free from all incumbrances, which deed shall contain a general warranty, and the usual full covenants; and it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties.
    “ In witness whereof the parties to these presents have hereunto set their hands and seals, the day and year first above written.
    “Mathew McKeon, [l.s.]
    “Thomas.Elynn, [l.s.]
    “ Sealed and delivered in presence of
    The action came on to be tried before Mr. Justice Bósworth, and a jury, on the 6th of February, «1856. Upon the plaintiff’s resting, the defendant moved to dismiss the complaint, which motion was denied. The defendant then entered upon evidence.
    The cause being ended, the learned Judge charged as follows:
    There is no controversy in relation to the amount which the plaintiff is entitled to recover, if entitled to recover at all. It is conceded to be the principal sum of two hundred and fifty dollars, and interest, which together amounts to two hundred and eighty-nine dollars and thirty-seven cents. It is unnecessary, therefore, for you to determine the amount of plaintiff’s damages. I shall submit to you certain questions of fact in writing, to each of which you will answer “Yes” or “No,” according as upon the evidence you shall determine the truth to be. The first question is this:
    Did McKeon, on the 15th of November, 1854, tender to Flynn the deed shown to the witness Jarvis, and demand of Flynn the payment of nine hundred and fifty dollars, and a bond and mortgage for two thousand dollars ?
    ,If you believe the testimony of Jarvis, and that the deed produced in. court is the one which he says was tendered in his presence, this question should be answered affirmatively.
    The second question is this:
    If you answer “ Yes” to the above question, then state whether Elynn unconditionally refused to accept the deed, and pay nine hundred and fifty dollars, and give his bond and mortgage for two thousand dollars ?
    If Elynn stated no reason for refusing to accept the deed, and pay. the nine hundred and fifty dollars, and execute the bond and mortgage for two thousand dollars, your answer to this question should be “ Yes.” If he made no objections to accepting the deed, except that the lot was not as large as he supposed, but did make that objection, you should give the same answer, as there is no pretence that the deed does not embrace all the land covered by the contract. But if you believe, from the evidence, that he objected to accept the deed, on the ground that the property was encumbered, and was ready to accept and perform on his part, on receiving am unencumbered title, your answer to the question should be in the negative.
    The third question is this:
    Did either of the interviews at Mr. Dickinson’s office, testified to by him, when both him and McKeon were present, take place before the 15th of November, 1854?
    This question should be answered in the affirmative, if you believe that the interview took place before the 15th of November, 1854, between the plaintiff and defendant, in which Mr. Dickinson stated, that time beyond that date would be necessary to examine the title; and in which the plaintiff stated that he would not be ready to perform on that day. If that interview was after the 15th of November, you should answer the question in the negative.
    The fourth question is:
    Was Elynn at the office of Judah & Dickinson on the 4th of January, 1855, for the purpose of and prepared to pay McKeon nine hundred and fifty dollars, and give him a bond and mortgage for two thousand dollars, on receiving a deed of the premises which would convey a good title to them ?
    If Elynn was at the office of Judah & Dickinson on the 4th of January, 1855, having nine hundred and fifty dollars under his power and control to be paid to defendant, and for the purpose of paying it to him and accepting a deed, and executing a bond and mortgage for the two thousand dollars, on being offered a deed which would convey a good and unencumbered title to the premises, this question should be answered in the affirmative.
    There is no conflict of evidence as to any other matters of fact necessary to be known, in order to determine the rights of the parties in this action.
    On receiving your verdict the court will direct such a judgment to be entered as in its view the law—arising upon the facts, as you shall find them in respect to the questions submitted to you, and upon the undisputed facts of the case—may require.
    To each of the questions submitted, except to the second one, the jury, by their verdict in writing, answered “Yesand to the second question they answered “No.”
    And the said Justice thereupon ordered a judgment to be entered for the plaintiff, for the sum of two hundred and eighty-nine dollars and thirty-seven cents; to which decision and order the counsel of the defendant did then and there except.
    
      Mr. Hadcliff, for the appellant.
    
      Mr. Judah, for defendant.
   By the Court. Oakley, Ch. J.

The view we have taken of the case will dispense with any minute examination of many points made by the parties.

The written agreement between them provided that possession should be given on the 1st, and the deed delivered by McKeon, the defendant, on the 15th of November, 1854. It was dated the 27th of October of that year. Two hundred and fifty dollars were paid down by the plaintiff, and he was to pay $950 more upon the delivery of the deed.

In the first place, we consider it fully settled, that even upon a contract under seal fixing a period for performance, that period may be extended by a parol agreement. In the next place, the jury have found that an interview took place, prior to the 15th of November, at Dickinson’s office, and at that interview it was in substance agreed there, that the time would have to be extended.

We will then suppose, that the jury had answered the second question put to them by the Judge, without a word of qualification ; that is, that they had answered that Flynn unconditionally refused to accept the deed and pay the $950, and give his bond and mortgage. The defendant says, that they could find nothing else upon the evidence.

Upon that assumption, the case is presented of a parol agreement between the parties, that the agreemént should be treated as at an end, and each of them discharged. If parol evidence is competent to establish such a mutual rescission, the same evidence is competent to prove a subsequent re-instatement of the contract. Such evidence exists in the case, and is decisive.

The Judge stated that there was no conflict of evidence as to any other matter of fact necessary to be known, in order to determine the rights of the parties, than those he had submitted; and this leaves the testimony of Dickinson uncontroverted. That testimony proves that negotiations for fulfilment of the contract were resumed and carried on after the 15th of November; several days were fixed by the defendant for that purpose, and finally, the 4th of January, 1855, definitely agreed upon.

On that day, the plaintiff and his associate in the purchase, Fogarty, attended at Dickinson’s office, and the jury have found, that the plaintiff was there for the purpose of, and prepared to pay, McKeon $950, and give him a bond and mortgage for $2000 on receiving a deed of the premises, which should convey a good title. The defendant neglected to attend.

The question comes then to this, Whether the plaintiff was bound to do more than he has done or was prepared to do, as found by the jury. It is said he was to make an actual tender of a deed to be executed by the defendant, and an actual tender of his own bond and mortgage.

The English practice, requiring the vendee to tender a deed, has never prevailed in this state. It is naturally the duty and office of the vendor to have it prepared.

The cases are collected in “Sugden’s Law of Vendors,” p. 247, to which should be added Wells v. Smith (2 Ed. Ch. Rep. 78, and 7 Paige, 22, on appeal).

In our opinion, there is nothing in any of the cases in our own Court to interfere with the proposition, that where a vendor and vendee have expressly fixed upon a time and place to fulfil a contract, and the vendee attends and is prepared to do all that the contract calls upon him to perform, and the vendor does not attend, an action will lie by the vendee to recover the deposit-money paid by him.

Judgment affirmed, with costs.  