Judges: Smith
Filed Date: 12/15/1873
Status: Precedential
Modified Date: 11/15/2024
The time fixed in the contract for its performance was October 1,1871. The giving of the deed and the bond and mortgage, and the payment of the $100, were to be simultaneous acts. Neither party was at Batavia, the place agreed upon for the performance of said contract, on the said first day of October, but the time for such performance was extended two weeks by mutual agreement. At the expiration of the two weeks, and while the defendant was on his way to Batavia with the money to fulfill the contract on his part, he received notice from Scofield not to go to Batavia as he had to go,away, and was not ready to give the deed.
The parties did not meet at this time, and no other agreement was made for the extension of the time of performance. I think, the referee erred in finding that the agreement to extend the time of performance was an agreement for an extension for a reasonable time. It was an explicit agreement for an extension for a fixed and definite time of two weeks. The failure of the plaintiff Scofield to attend at that time at Batavia, ready to perform the contract on his part, was his own fault and without the assent of the defendant, and as the latter was notified not to attend at the said time and l place, and that Scofield was not ready to deliver the deed at such time and place, he was excused from attendance at such place and time, and discharged from all obligation to perform such contract.
The referee clearly erred in finding that the plaintiff was entitled to recover. Upon the clear 'and undisputed facts of the case. Scofield, the plaintiff’s assignor, was not ready to perform on his part, and did not offer at the proper time to perform, and in such case the plaintiff had no right of action against the defendant for his non-performance.
The judgment should be reversed and a new trial ordered, with costs to abide event.
tJudgment reversed and new trial ordered.