
    Carl Klaweiter, Resp't, v. John Hubner, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Vendor and purchaser—Specific performance.
    Upon appeal from a judgment for plaintiff in an action to compel the specific performance of a contract for the sale of real estate, appellant claimed that the judgment could not be sustained for the reason that he had sold and conveyed the lands'in question to another person, and, therefore. performance of the contract was not within his power. The trial court was not requested to find upon the question, nor did the answer contain such an allegation, hut alleged willingness to complete, and the only evidence on the subject was that of one of plaintiff’s witnesses, who, on cross-examination, said he put the contract on record after he learned that defendant had sold the property to another person. Held, that the fact of such sale to a third party could not be determined on the appeal.
    2. Same—Tender.
    Where the consideration for the sale of real estate, as agreed in a written contract, is a certain sum of money and the assumption of a mortgage of a certain amount on the property, and thereafter the purchaser finds that the mortgage is in fact for a greater sum, a tender of a sum equal to the amount agreed, less the excess of the amount of the mortgage over the amount as stated in the contract, is a substantial compliance with the contract
    Appeal from a judgment entered upon a decision of the Erie special term.
    
      George W. Cothran, for app’lt; E. O. Farrar, for resp’t.
   Haight, J.

This action was brought to compel the specific performance of a contract for the sale of real estate. The facts as found by the court are in substance, that on the 3d day of March, 1891, the plaintiff and defendant entered into a written •contract by which the latter agreed to sell to the former the premises in question for the sum of $1,700.00, which was to be paid as follows: $25.00 on executing the contract, $475.00 on or about the first day of April, 1891, and the balance by the purchaser’s assuming a mortgage upon the premises- held by a loan .association, amounting to $1,200.00. On receiving the payment of $475.00 the defendant agreed, at his own proper cost and expenses, to execute and deliver to the plaintiff a warranty deed free and clear of all incumbrances, except the mortgage for the sum of $1,200.00. The $25.00 was paid at the time the contract was executed, and on the 13th day of April, 1891, the plaintiff tendered to the defendant $341.00 lawful money of the United States, and demanded that the defendant should execute and deliver to him a deed of the premises. The plaintiff at the same time tendered to the defendant a deed containing full covenants of warranty, without any clause reserving the amount of the ■mortgage, or an assumption to pay it by the grantee. The defendant refused to receive the money, or to execute or deliver the •deed. At the time of making the contract the defendant had represented to the plaintiff that the mortgage upon the premises was but $1,200.00, but at the time of the making of the aforesaid tender the plaintiff had ascertained that the mortgage upon the premises was for the sum of $1500.00, and that $141.00 only had been paid thereon, leaving a balance unpaid of $1,359.00.

The trial court found that the plaintiff was entitled to a specific performance, and ordered judgment accordingly.

It is claimed that the judgment cannot be sustained for the reason that the defendant had sold and conveyed the lands in question to another person, and that, therefore, performance of the contract was not within his power. JSTo such fact was found by the trial court, or requested to be found. The answer contains no such allegation, but instead thereof it alleges: “ That said defendant has always been, and now is, ready and willing to perform his part of said agreement." It is said, however, that the fact was made to appear upon the trial by the plaintiff’s own evidence. The only evidence bearing upon tie subject appears in the testimony of the witness Frank, who was sworn as a witness on behalf of the plaintiff. On his cross-examination he stated that “ I put this -contract on record after I had learned that Hubner had sold his property to another person.” This expression was called out by the defendant and not by the plaintiff. He does not state the source of his information, how he had learned of the sale, or whether it was anything more than a rumor or hearsay. Inasmuch as the trial court was not requested to find upon this question, we are inclined to the view that we"cannot now, from this evidence, determine the fact for the purpose of overturning the judgment.

It is further contended that the plaintiff had not performed the •contract on his part, and was, therefore, not entitled to a judgment for specific performance. It is true that he to the sum of $475 on or about the first day of April, 1891; and that instead of tendering that sum he only tendered the sum of $341. But the defendant had represented to him that the mortgage upon the premises only amounted to $1,200, whereas in fact it was for the sum of $1,500, and the sum of $1,359 still remained unpaid thereon. The amount tendered was the difference between the amount of the mortgage which the plaintiff had agreed to assume and pay and the purchase price. And, under the circumstances, we think it was a substantial compliance with the provisions of the contract.

The deed tendered to the defendant by the plaintiff was not in-accordance with the contract, and the defendant was under no obligation to execute the same. But he had agreed at his own proper cost and expenses to execute and deliver a proper deed. Upon the tender to him of the money, it became his duty to perform his agreement in this regard.

The judgment should be affirmed, with costs.

Dwight, P. J., Macomber and Lewis, JJ., concur.  