Contract, Performance and breach. Conditions, Concurrent. Equity Jurisdiction, Specific performance.
In a suit in equity to enforce the specific performance of a contract by which the defendant agreed to sell certain land to the plaintiff for the sum of $50 per acre at any time before the expiration of a certain lease, the conditions of the contract being concurrent the plaintiff need not prove a tender of the purchase money. It is sufficient for him to show that he notified the defendant that he would take the land and pay the price, and was ready and able and offered to do so, and that the defendant refused to convey the land and did not intend to keep his agreement. A request by the plaintiff that the defendant should have a survey of the land made, this being necessary to determine how much should be paid, does not excuse the defendant's refusal to convey, especially if he did not base his refusal on that ground.
HAMMOND, J.
The defence is that the plaintiff made no tender of the purchase price. It is true that no formal tender was made, but it was unnecessary. In a case like this, where the stipulations are that the one shall pay the money and the other shall execute a conveyance, and there is no provision that either is to be done first, the covenants are mutual and dependent. The one is not bound to pay without receiving his deed, nor the other to part with his land without receiving his money. The performance must be simultaneous. It is not necessary on the part of the purchaser to make a strict tender. It is sufficient that when the time comes for the transaction he is able and prepared to pay, and demands the deed. That is sufficient tender of performance. Irvin v. Gregory, 13 Gray, 215.
The judge has found that before the expiration of the lease the plaintiff notified the defendant that "he would take the land and pay the price, and . . . was ready and able and offered to do so." The plaintiff's evidence tended to show also that the defendant refused to give the deed, and the judge found that he "did not intend to convey or keep his agreement." The evidence fully justifies these findings.
As to the contention of the defendant that the plaintiff asked him to have a survey made of the land, it is enough to say that the judge has found that such a survey was necessary to determine the price to be paid, and that the defendant did not put his refusal to convey on the ground that the survey was requested, nor did he rely upon it as a ground for refusal at the time the plaintiff offered to pay. The evidence at the trial showed a case for the plaintiff.
The defendant demurred to the bill upon the ground that it did not appear therein "that the plaintiff ever tendered, before the expiration of the term of the lease, to the defendant, the purchase price." For the reasons above given the demurrer was overruled rightly.
In accordance with the terms of the report there must be a
Decree for the plaintiff.