
    Shepman Mortgage and Realty Corporation, Respondent, v. Matilda Sussman, Appellant.
    Second Department,
    November 10, 1911.
    Vendor and purchaser —■ sale of land — trial — when charge becomes law of case — failure of purchaser to make payments — recovery of money paid — damages — resale.
    Where in an action to recover payments made on a contract for the purchase of land and also to recover damages from the vendor for breach of the contract, it is conceded that the land consisted of 133 lots, and that the vendor had parted with title to two of them before making the contract, but the vendor gives evidence to show that plaintiff knew the facts when he made the contract, and the trial judge, without any exception on the part of the plaintiff, charges that a tender of a deed for 130 lots would have been substantial performance, this becomes the law of the case, and plaintiff Cannot urge on appeal that defendant admitted that she was unable-to convey the number of lots agreed upon.
    Where the contract of sale called for the payment of $500 on the execution • of the contract, $3,500 on or before.a certain date and $8,000 at the closing of title, the purchaser is not entitled to demand a deed until he has paid $4,000, and the payment of the further sum of $8,000 should concur with performance of the contract by the vendor.
    The purchaser is not excused from making the payments agreed upon because there were unpaid taxes and a mortgage on the land to be conveyed aggregating $11,300, which defendant admitted she did not have money to pay, especially where it-appears that the purchaser was itself in no financial position to carry out the contract.
    Where the complaint alleged no such special damage the plaintiff cannot recover profits lost upon a resale of some of the lots or commissions paid or incurred on such resale.
    Appeal by the defendant, Matilda Sussman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of December, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes. •
    
      Walter L. Durack [Joseph J. Schwartz with him on the brief], for the appellant.
    
      Leonard J. Ohermeier [Montague Lessler with him on the brief], for the respondent.
   Thomas, J.:

Elizabeth L. Shepman, plaintiff’s assignor and president, as Vendee, made a contract with defendant for the purchase of 132 lots at the rate of $350 per lot, and reference was had to a filed map. The payments were due, $500 on execution of the contract; $3,500 on or before September 25, 1906; $8,000 on or before October 15, 1906, at which time the title should pass, and a mortgage for the balance of the purchase money was promised. The first payment was made, but only $500 of the second payment, due September twenty-fifth, was made, either through pecuniary inconvenience or the vendee’s apprehension of the vendor’s inability to fulfill, and further performance by vendee was continued to October twenty-ninth, and passing of title was set for November fifteenth. There was no further payment made or tendered by the vendee or the assignee. After the vendee’s failure to pay the $3,000 balance postponed to October twenty-ninth, the defendant threatened a forfeiture, and this resulted in a letter dated November twelfth from plaintiff’s lawyers, intimating an action against the vendor and suggesting a conference for adjustment. There was no meeting on November fifteenth, but on November nineteenth the par-ties did meet, and an unavailing discussion resulted in an adjournment to November twenty-first, when no money or deed was tendered, and there was a-final parting in disagreement. Search showed that years earlier defendant’s husband, Sussman, had for some purpose conveyed two lots to Rosen, taking a purchase-money mortgage for $400, and that he retained custody of. the deed. Hence, conveyance of these lots could not he had pending foreclosure of the mortgage, and unless time were afforded for that purpose, the vendor could not fulfill, and her agent,. Miv Sussman,, admitted the; inability.. Rut em the. trial! evidence; wag- given, isa behalf ®£ the> defendant that the- purchaser- wag; apprised before-, the-, contract was executed of. the-, difficulty,, and’, consented that a conveyance of the two lots- could he- made; opportunely. The learned trial justice withdrew from the jury the whole issue as to these two lots by an instruction that a tender of a deed for 130 lots would have been substantial performance,, “ but,” he added, it wouldhaye to be clear of taxes and assessments and mortgages.” So it appeal’s that the judgment has gone against the defendant because she did nor clear her land of liens for taxes, in amount some $5,700, and a mortgage on which there was an unpaid balance of $3,500. The plaintiff’s contention was and is that nothing need be tendered the defendant until the latter had cleared all the liens, and' that as she admitted that she could not convey the two lots and did not have the money to discharge the liens, the vendee was justified in regarding itself as ready and willing to perform but excused from tender or payment by-reason of the defendant’s unreadiness. That attitude was unjust and injurious to the vendor. She Was obligated to be ready with unincumbered land on the day, and for this she needed money. Anticipating it the parties had agreed that as early as September twenty-fifth the vendor should be paid $3,500, but by plaintiff’s default only $500 was paid. Then by the defendant’s consent the'payment of the remaining $3,000 was set for October twenty-ninth, which came and went with plaintiff persisting in default, and at the meetings of November nineteenth and twenty-first the plaintiff ignored its continuing disregard of its obligation and the consequent measurable disablement of the defendant to clear the liens, and demanded that all liens be lifted, although it had helped-to retain them by crippling the vendor’s available resources. The defendant was entitled to the $3,000 before closing the title and before any performance on her part, and on the closing day the payment of the further sum of $8,000 should concur with her performance. With these sums the liens could have been removed, and without the $8,000 the defendant could have applied the $3,000 for that purpose. It is no-answer that in itself the $3,000 was insufficient. It was a substantial contribution, and plaintiff could not examine defendant’s assets and credits and conclude that payment of the $3,000 would nob effect the removal of the liens. The promise to pay had been made. It had not been waived, and the plaintiff before accusing another of default should have mended its own. It is observed that the plaintiff would hold the- defendant to strict: performance, but nothing could be more evident than its own lack of readiness. The vendee was Elizabeth. Shopman, the successor to her rights was the Shepman Company. Its president on the trial traced the resources for payment to her aunt’s bank book, to which she by some right claimed access;' to people who had promised to invest in the company; to some money the company had, she knew not what; to some money her or its lawyer would invest in the company, etc. The testimony of the lawyers does not attribute much financial stability to the plaintiff. The palpable fact is that the plaintiff was' not at all ready. What it and its president in association with her relative, and proposed investors, could have done may be something more than conjecture, but these resources were unmarshaled and could not have been seasonably organized to save a default. The plaintiff’s ready answer is that the defendant was unable to convey the lots and so admitted. With that this court is not concerned. The trial court eliminated that question without exception on the part of the plaintiff. This left the sole question of default of one or both • of the parties, one in paying or readiness to pay and the other in clearing the lien's. «The jury found a verdict of $1,500, which included loss of profits to plaintiff upon resale of some nineteen of the lots. The trial justice correctly conceived that such recovery was in error, and granted a new trial unless the verdict was reduced to $2,500, but permitted that sum to include commissions paid or incurred on such resale. There was no such special damage alleged in the complaint, the language of which excludes such demand.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J.., Hirschberg, Burr and Carr, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  