Ford v. Hedley

Opinion by

Trexler, J.,

The plaintiff made an agreement with the defendant for the purchase of a lot of ground for $2,000.00, $1,-000.00 to be paid by the delivery of an automobile, the balance to be raised by a building association mortgage which the vendor, Hedley, was to negotiate and Ford, the purchaser, was to execute. The plaintiff delivered the automobile as agreed, but claims that the vendor did not keep his bargain. He brings suit for the value of the automobile. The court entered judgment in his favor for want of a sufficient affidavit of defense. We think the judgment was properly entered.

The case on its face presents nothing that would make difficult a statement of the facts constituting the defense. The defendant alleges a compliance with his contract and states that he made a tender. He avers that he would have given at the time the tender was made to the said plaintiff, a clear title to said property and that all judgments and liens would have been removed. Under the agreement the property was “to be conveyed clear of all encumbrances.” Plaintiff was not required to take it subject to liens even if it was the intention of the vendor to remove the liens subsequently. There is no denial of the fact alleged by the plaintiff that the property was encumbered. The tender had to be made in conformity to the agreement. His ability to clear the title was not the criterion. The agreement required the title to be clear when the deed was given.

Judgment affirmed.