Vann, J.
The only decision of the Special Term that appears in the record before us consists of the findings proposed by the parties marked “found” or “refused,” as the case may be, by the judge who presided at the trial. Thus it happened that the court directed that the complaint should be dismissed, both upon the merits and because the plaintiff had an adequate remedy at law. According to a long and unbroken line of decisions, the latter ground is clearly untenable. As early as 1835, it was said by Chancellor Walworth that a suit in equity against the vendee to compel a specific performance of a contract to purchase land had always been sustained as a part of the appropriate and acknowledged jurisdiction of a court of equity, although the vendor has, in most cases, another remedy hy an action at law upon the agreement to purchase.
(Brown v. Haff,
5 Paige, 235.) One of the
earliest decisions of this court was to the same effect
(Crary
v.
Smith,
2 N. Y. 60), and the right of a vendee to maintain specific performance is too well settled to require further discussion. (St
one
v.
Lord,
80 N. Y. 60; Fry on Specific Performance [3d Am. ed.] 8; Pomeroy’s Eq. Jur. §§ 30-42.) Bo such defense was set up in the answer, as the established practice requires, and no such question was raised upon the trial.
(Ostrander
v.
Weber,
114 N. Y. 95;
Hollister
v.
Stewart,
111 id. 644, 659.)
As the court, however, did not refuse to consider the case, hut exercised its jurisdiction by deciding it upon the merits, it may he that the error above pointed out did not prejudice the plaintiff, because the general result may have been right, although that particular conclusion was wrong. We, therefore, proceed to the other questions presented by the record.
After the execution of the original contract the defendant gave the plaintiff a verbal option to extend the time of performance for thirty or sixty days, provided at the time fixed for carrying out the agreement as it then stood, he would •increase the amount of the purchase-price and pay an additional sum down.
(Moody
v.
Smith, 70
N.Y. 598;
Worrall
v.
Munn,
5 id. 229.) The plaintiff acted upon this proposition, which was never withdrawn, attended at the time and place specified prepared to accept and perform it, and gave notice that he elected to accept that branch of the option which provided for an extension of sixty days. It. was claimed in behalf of the defendant that in no event did the option permit an extension of more than thirty days. She was not present, hut she was represented by two agents, neither of whom was empowered to sign an extension for sixty days, or had any evidence of his authority to act for the defendant in any respect. We agree with the learned trial judge in his conclusion that, under these circumstances, “the plaintiff had a right to he reasonably satisfied as to the authority of any person who claimed to act as the agent of the defendant before paying the said ten thousand dollars ” and that “ as it was agreed between the parties that there should he an extension, the plaintiff was
entitled to a reasonable time within which to perform the original agreement if the parties honestly and in good faith differed as to the length of the extension.” We think, however, that these conclusions, together with tke"facts found by the trial judge, did not justify his refusal to find, as requested, that “the defendant could not terminate the rights of the plaintiff by a tender of the deed made at the time and j>lace mentioned in the contract, after what had passed in reference to an extension.”
The plaintiff was not in default. By the invitation of the defendant he attended, through his agent, to modify, not to perform the agreement. He accepted the modification proposed by the defendant, as he understood it, so far as, under the circumstances, he was able prudently to do so. He offered to pay the ten thousand dollars at the time and place required by the option to the person entitled to it, but she was not there to receive it. He'offered to pay it to the gentleman who claimed to be her agent, if he would produce evidence of his authority to receive it, but such evidence was not produced. There was no one present who was authorized by her to sign an' extension for sixty days, and although she had verbally authorized one who was there to sign an extension for thirty days, there was no evidence of the fact except his assertion. The option was not withdrawn but was recognized by the defendant as still in force.
The plaintiff, as the trial court held, had the right to be reasonably satisfied as to the authority of the assumed agent and he also had the right to insist upon an extension in writing, properly signed, before he paid over the money.
(Marvin
v.
Wilber,
52 N. Y. 270;
Rice
v.
Peninsular Club,
52 Mich. 87; Mechem’s Agency, §§ 276, 290; Dunlap’s Paley on Agency, 346.) Ho offer was made in behalf of the defendant to satisfy the plaintiff as to the question of authority and his right to an extension for sixty days, under any circumstances, was denied. He gave notice that he was ready to pay over the ten thousand dollars at any time that the defendant, or some one who could justify as her agent, ajiplied for it.
Assuming that he was right in his position that the extension was to be for sixty days, what more should he have done ? Was he under obligation to pay the money and run the risk, or else be put in default? Was he responsible for the embarrassment of the situation ? Was it not the duty of the defendant, either to be at the place appointed in the city where she resided or to have an agent there with proof of his authority, or at least, when the question was raised, to do something to satisfy the plaintiff that it would be safe for him to pay the money
'l
Nothing of this character was done, but on the other hand "the plaintiff was notified that the contract was at an end, that the money already paid thereon was forfeited and that he would not be recognized as having any further rights. On the assumption that the extension was to be for sixty days, who was in default or who was next called upon to act at the close of the interview on September 1, 1886
%
The plaintiff still stood within the lines bounding his legal rights, whereas the defendant had wrongfully repudiated her contract. Having taken an untenable position, if she receded therefrom, she was bound to notify the plaintiff.
(Selleck
v. Tallman, 87 N. Y. 106.)
If, after this, she had notified him when, where and with whom he could perform the original agreement, or complete the modification thereof, prompt action would have been required on his part to save his rights. The defendant, however, made no effort of this kind, but adhered to the position that the plaintiff had no rights that she would recognize. Under these circumstances we think that it was material for the trial court to determine whether the option embraced an extension for sixty days or only for thirty days.
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Vann, J.
The only decision of the Special Term that appears in the record before us consists of the findings proposed by the parties marked “found” or “refused,” as the case may be, by the judge who presided at the trial. Thus it happened that the court directed that the complaint should be dismissed, both upon the merits and because the plaintiff had an adequate remedy at law. According to a long and unbroken line of decisions, the latter ground is clearly untenable. As early as 1835, it was said by Chancellor Walworth that a suit in equity against the vendee to compel a specific performance of a contract to purchase land had always been sustained as a part of the appropriate and acknowledged jurisdiction of a court of equity, although the vendor has, in most cases, another remedy hy an action at law upon the agreement to purchase.
(Brown v. Haff,
5 Paige, 235.) One of the
earliest decisions of this court was to the same effect
(Crary
v.
Smith,
2 N. Y. 60), and the right of a vendee to maintain specific performance is too well settled to require further discussion. (St
one
v.
Lord,
80 N. Y. 60; Fry on Specific Performance [3d Am. ed.] 8; Pomeroy’s Eq. Jur. §§ 30-42.) Bo such defense was set up in the answer, as the established practice requires, and no such question was raised upon the trial.
(Ostrander
v.
Weber,
114 N. Y. 95;
Hollister
v.
Stewart,
111 id. 644, 659.)
As the court, however, did not refuse to consider the case, hut exercised its jurisdiction by deciding it upon the merits, it may he that the error above pointed out did not prejudice the plaintiff, because the general result may have been right, although that particular conclusion was wrong. We, therefore, proceed to the other questions presented by the record.
After the execution of the original contract the defendant gave the plaintiff a verbal option to extend the time of performance for thirty or sixty days, provided at the time fixed for carrying out the agreement as it then stood, he would •increase the amount of the purchase-price and pay an additional sum down.
(Moody
v.
Smith, 70
N.Y. 598;
Worrall
v.
Munn,
5 id. 229.) The plaintiff acted upon this proposition, which was never withdrawn, attended at the time and place specified prepared to accept and perform it, and gave notice that he elected to accept that branch of the option which provided for an extension of sixty days. It. was claimed in behalf of the defendant that in no event did the option permit an extension of more than thirty days. She was not present, hut she was represented by two agents, neither of whom was empowered to sign an extension for sixty days, or had any evidence of his authority to act for the defendant in any respect. We agree with the learned trial judge in his conclusion that, under these circumstances, “the plaintiff had a right to he reasonably satisfied as to the authority of any person who claimed to act as the agent of the defendant before paying the said ten thousand dollars ” and that “ as it was agreed between the parties that there should he an extension, the plaintiff was
entitled to a reasonable time within which to perform the original agreement if the parties honestly and in good faith differed as to the length of the extension.” We think, however, that these conclusions, together with tke"facts found by the trial judge, did not justify his refusal to find, as requested, that “the defendant could not terminate the rights of the plaintiff by a tender of the deed made at the time and j>lace mentioned in the contract, after what had passed in reference to an extension.”
The plaintiff was not in default. By the invitation of the defendant he attended, through his agent, to modify, not to perform the agreement. He accepted the modification proposed by the defendant, as he understood it, so far as, under the circumstances, he was able prudently to do so. He offered to pay the ten thousand dollars at the time and place required by the option to the person entitled to it, but she was not there to receive it. He'offered to pay it to the gentleman who claimed to be her agent, if he would produce evidence of his authority to receive it, but such evidence was not produced. There was no one present who was authorized by her to sign an' extension for sixty days, and although she had verbally authorized one who was there to sign an extension for thirty days, there was no evidence of the fact except his assertion. The option was not withdrawn but was recognized by the defendant as still in force.
The plaintiff, as the trial court held, had the right to be reasonably satisfied as to the authority of the assumed agent and he also had the right to insist upon an extension in writing, properly signed, before he paid over the money.
(Marvin
v.
Wilber,
52 N. Y. 270;
Rice
v.
Peninsular Club,
52 Mich. 87; Mechem’s Agency, §§ 276, 290; Dunlap’s Paley on Agency, 346.) Ho offer was made in behalf of the defendant to satisfy the plaintiff as to the question of authority and his right to an extension for sixty days, under any circumstances, was denied. He gave notice that he was ready to pay over the ten thousand dollars at any time that the defendant, or some one who could justify as her agent, ajiplied for it.
Assuming that he was right in his position that the extension was to be for sixty days, what more should he have done ? Was he under obligation to pay the money and run the risk, or else be put in default? Was he responsible for the embarrassment of the situation ? Was it not the duty of the defendant, either to be at the place appointed in the city where she resided or to have an agent there with proof of his authority, or at least, when the question was raised, to do something to satisfy the plaintiff that it would be safe for him to pay the money
'l
Nothing of this character was done, but on the other hand "the plaintiff was notified that the contract was at an end, that the money already paid thereon was forfeited and that he would not be recognized as having any further rights. On the assumption that the extension was to be for sixty days, who was in default or who was next called upon to act at the close of the interview on September 1, 1886
%
The plaintiff still stood within the lines bounding his legal rights, whereas the defendant had wrongfully repudiated her contract. Having taken an untenable position, if she receded therefrom, she was bound to notify the plaintiff.
(Selleck
v. Tallman, 87 N. Y. 106.)
If, after this, she had notified him when, where and with whom he could perform the original agreement, or complete the modification thereof, prompt action would have been required on his part to save his rights. The defendant, however, made no effort of this kind, but adhered to the position that the plaintiff had no rights that she would recognize. Under these circumstances we think that it was material for the trial court to determine whether the option embraced an extension for sixty days or only for thirty days. If it was for the former period, the defendant was in default, because at the time and place specified for the performance of the original agreement and for the completion of the modification according to the option, she was not present and was not represented by a agent authorized to sign an extension for sixty days. The learned trial judge, however, found that it was not material to determine whether the period of extension was to be for
thirty or sixty days and refused to find, as requested by the' plaintiff, that it was to be for sixty days. When the finding and the refusal to find are construed together, it must be assumed that he refused so to find because it was immaterial. While he liad the power to disbelieve the witnesses for the plaintiff, he had no power to hold that the question was immaterial and on this account to refuse to find as requested. As we have held that the question was material, the refusal, under the circumstances, was an error of law, even if the fact was not conclusively proved.
(James
v.
Cowing,
82 N. Y. 449; Code Civ. Pro. § 993.) But the defendant claims that it was not prejudicial error because, even according to the plaintiff’s theoiy as to the period of extension, he did not tender performance in time. He tried- to make a tender of the amount required and interest on the sixtieth day, pursuant to previous notice to the defendant, but the agent designated by her ivas not present at the place she had appointed and the effort was thus rendered futile. A tender Avas made as soon as practicable thereafter, but not until the sixty days had expired. This Avas hot the fault of the plaintiff, but of the defendant, and for this reason the tender should be regarded as made Avithin the time required.
(Duffy
v.
O'Donovan,
46 N. Y. 223;
Hubbell
v.
Von Schoening,
49 N. Y. 326.) Moreover, after the defendant had raptured all relations with the plaintiff by repudiating her contract and declaring that all his rights thereunder had been forfeited, was he bound to make any tender before commencing ail action for specific performance
%
We do not think that it was necessary for him to go through with the form of making an offer of the money when she had Adrtually declared that she would not receive it.
(Cornwell
v.
Haight,
21 N. Y. 462;
Bunge
v.
Koop,
48 id. 225;
Blewett
v.
Baker,
58 id. 611;
Lawrence
v.
Miller,
86 id. 131;
Selleck
v.
Tallman,
87 id. 106;
Woolner
v.
Hill,
93 id. 576;
Skinner
v.
Tinker,
34 Barb. 333.) When the final tender was arranged for, the plaintiff was informed that it would be useless, as the defendant had sold the property and was not in a position to give a
-deed. The tender was not refused because not made within the sixty days, but because the contract had been forfeited before the sixty days began to run.
(Duffy
v.
O'Donovan,
46 N. Y. 223;
White
v.
Dobson,
17 Grat. 262;
Brown
v.
Eaton,
21 Minn. 409;
Mattocks
v.
Young,
66 Me. 459.)
It is claimed that the plaintiff was in default on the 1st of September, 1886, because he was not present in person, but appeared through agents, who did not produce any evidence of their authority to act for him. This claim is not well founded, because the defendant did not question the authority of those who claimed to represent the plaintiff. If she liad,
non constat
due authority would have been shown, or the plaintiff would have been called in. On the other hand, the power of those who assumed to represent the defendant to the extent necessary to consummate the option, was distinctly challenged, but nothing was done or offered to be done to remove the objection.
It is also claimed that as the plaintiff recognized the agency of Mr. Shaw in giving the option, he could not deny such agency when the time for accepting the option arrived. The plaintiff, in relying upon the option, ran the risk of Mr. Shaw’s authority in the matter, but it turned out that he had been duly authorized to offer the extension; but at the time specified for accepting the option, it is distinctly found that “ no one was present whom the defendant had authorized to attend and give an extension of sixty days.” Mr. Shaw’s authority, therefore, as well as that of Mr. Pierce, fell short of the requirements of the situation, and the defendant was consequently in default, provided the option was for sixty instead of thirty days. The plaintiff had the right at the time and place specified to give notice that he accepted the option and was ready to perform it, even if there had been no one present, because both the original contract and the option fixed the office and the hour where the former was to be performed and the latter accepted. While the two gentlemen who attended for the defendant had authority to act for her to a certain extent, it was inadequate, as they at the time declared, to per-
feet the extension for the period insisted upon- by plaintiff. If he was justified in thus insisting, he had the right to say, as it was proved that he did say, to Mr. Shaw : “Wewon’t take an extension signed by yon or Mr. Pierce, but we will take one signed by Miss Pinckney.”
After carefully examining the various grounds upon which the learned counsel for the respondent has urged us to affirm the judgment, we are of the opinion that it should be reversed, and a new trial granted, witli costs to abide event.
All concur, except Haight, J., dissenting.
Judgment reversed.