Barney v. Loper

By the Court, Johnson, J.

The only question in this case is whether Smith the vendor was in a situation to forfeit the contract and put an end to all the defendant’s rights under it, and had done so, before conveying to the plaintiff. By the terms of the contract, the defendant was bound to pay at certain specified times, but" Smith the vendor had permitted the times of payment to pass without objection or notice, and had received payments after the times stipulated had elapsed, so that when the day for the last payment had passed, time was no longer of the essence of the contract and the vendor could not put an end to it without notice to the vendee, and giving him a reasonable time thereafter; in which to make payment. The vendor may, however, after reasonable notice and non-payment rescind, the same as though there had been no previous waiver. (Harris v. Troup, 8 Paige, 423.)

[Monroe General Term, December 5, 1853.

Welles, Johnson and T. R, Strong, Justices.]

It appears from the evidence, that after all the payments had been due between one and two years, and the vendee had been repeatedly solicited by the vendor to make his payments, the latter offered that if he, the vendee, would still make the payments he should have the land. Whereupon the vendee requested further time, and proposed the 1st of April, 1851. The vendor acceded to it, and told him to be sure that he could do it at the time, and if he was not sure he eould pay it at that time, to set some further time, as he wanted the matter ended. The vendee thereupon agreed that if he did not pay by the first of June thereafter, he would quit without finding any fault. This it would seem was agreed to by the vendor. Payment was not made on that day, and nothing further was done until about the 1st of September, when the vendor met the vendee and gave him notice to quit and that he should sell the premises.

I think it is clear that the vendor Was then in a situation to rescind. His conduct had been reasonable and fair and indeed quite indulgent. The vendee chose his own time and made his own terms, and it was his own fault that he did not comply. His tender came too late. He had then no interest in the premises, to save or redeem by tender or offer of payment. He was in no better situation than he would have been had no contract ever existed between them. The decision of the referee was correct, and the judgment of the special term must be affirmed.