By the Court, Gridley, J.
This cause comes before the court upon pleadings and proofs, on a bill filed to compel the specific performance of a contract to convey to the plaintiffs a certain farm situated in Lewis county, together with a large quantity of personal property. The bill charges that in the year 1840 the defendant bid off the farm at $2000, on a mortgage sale; and also a large quantity of stock, farming utensils, and other property then on the farm, at a sale upon an execution against the plaintiffs. And that this purchase was made in pursuance of a verbal agreement to allow the plaintiffs to continue [278]*278in the possession of the said farm and personal property, by paying the interest on the auction price of the same; and ultimately to redeem the property by paying up the principal sum paid by the defendant on his purchase, and the interest on the same.
We think this agreement abundantly proved; but we shall spend, no time upon this part of the case, because the rights of the parties depend on certain written agreements subsequently made, which are set out in the pleadings, and concerning which much testimony has been taken. The most that can be made of the large mass of testimony concerning the relative situations of the parties, the condition and value of the property purchased by the defendant, and the mutual acts and declarations of the parties concerning the same, is to aid the court in the construction of the agreements on which the plaintiffs’ claim to relief in this action must of necessity depend. That these antecedent and “ surrounding circumstances” are competent evidence to place the court which is to expound a written instrument, in the same situation, and to give such court the same advantages for construing the instrument, as is possessed by the parties who executed it, is the settled law of the land. (2 Cowen & Hill’s Notes, p. 1399, citing Wigram on Extr. Ev. 59, 138.)
On the 3d of May, 1843, the parties entered into a written contract under their hands and seals, by which the defendant, in consideration of $2600 and of the covenants contained in the said instrument, leased the farm and personal property to the plaintiffs, for one year, at a rent equivalent to the interest on the sums at which the defendant bid off the same. This agreement also contained the following clause: “ It is further covenanted and agreed by and on the part of the said Kitts, that in case said Bellingers shall, at any reasonable time, pay to said Kitts, or secure to him all the interest on the money paid by him towards said place and personal property, and secure the said purchase money, he shall deed and convey to them the said land and personal property. The said personal property shall be made to be as valuable and appraised and made equal to what it was worth when purchased—and if not, it is to be made [279]*279good by said Bellingers, at the expiration of this lease.” The plaintiffs continued in the possession and occupation of this property, both real and personal, paying the stipulated interest and making permanent improvements upon the farm, until the 13th of. March, 1847; when the exact sum which was due for principal and interest was ascertained, and a new agreement was executed between the parties, in which the consideration was stated to be the sum of $2796 instead of the sum of $2600 which had been assumed in the first contract, without a calculation; and omitting the covenant to sell. Otherwise this agreement'was like the first.
Upon this state of facts the counsel of the defendant contends, 1st, that the reasonable time within which the plaintiff had the right to pay for or to secure the payment of the purchase price of the property, and have a conveyance, expired with the current year after the date of the contract. Granting that this would be so, if the occupation had ceased with the year, I can not admit that this consequence will follow when this original agreement was by implication continued from year to year until the execution of the new agreement in 1849. The rights of the parties are to be adjudged as though a new agreement, with the clause concerning the sale of the property, had been made each year, or at the expiration of the period covered by the preceding one. This should certainly be so held, in a case where the defendant has stood by and seen the farm rendered more valuable by permanent improvements, without interposing any notice of a claim that the condition conferring on the plaintiff the right to purchase had become forfeited. 2dly. The counsel also contends that the execution of a new agreement, omitting the provision giving the plaintiffs a right to purchase, cut off all right on the part of the plaintiffs to avail themselves of the condition in the former agreement. On the other side it is insisted that, so far as this condition is concerned, the old contract remains in force, by the express agreement of the parties; and that Mr. Knox, the depositary of the agreement, was specially directed by the parties to hold the old agreement, leaving it, so far as the covenant in question is concerned, a subsisting and [280]*280valid contract between the parties. This leads us to examine the testimony upon this point. The witness Knox, who had been the mutual agent of both parties; who had drafted both agreements ; and who had been present and heard all the negotiations between them, has given a very minute and particular account of the entire transaction. He at first prepared the second agreement with the clause in question inserted in it; whereupon it was objected to by Kitts, on the ground that he did not wish the agreement to contain the words “ executors, administrators and assigns,” for the reason that he did not intend to give the plaintiff a right to sell the place to any one else—still assuring them that he did not intend to object to their paying or securing him what he had paid, and receiving a conveyance of the property ; using the significant expression “ Farmer Jake [meaning himself] will not hurt a hair of your heads, boys.” He did not object to the covenant as he understood it to be expressed in the first agreement; and both parties directed Knox to hold the old agreement, as evidence of that portion of it which was not abrogated. It is true that Nelson Kitts, the defendant’s son, understood the conversation differently, in some respects. But this young man, when he comes to state the objection which his father made to executing the last instrument as it was at first written, states it substantially as Mr. Knox does. He may not have heard the entire negotiation. Mr. Knox did, and the young man may not have understood the conversation in all its parts as Mr. Knox must have done. He may be mistaken ; Knox cannot. Knox swears affirmatively and positively ; and if he swears untruly he does so intentionally, and is guilty of perjury. And there is no possible motive that, on these papers, can be assigned for the commission of such a crime; while a strong motive exists to induce young Kitts to defeat the plaintiffs’ claim, viz. an arrangement by which he is to have the farm himself. This he is compelled to admit on his cross-examination. For these reasons we give credit to Mr. Knox; and therefore hold the old agreement to sell and convey stiff binding on the defendant, notwithstanding the new lease does not contain the clause giving that rights
[281]*281This brings me to a consideration of the only remaining question, which arises upon the tender of the amount due to the defendant and the demand of a conveyance from him.
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By the Court, Gridley, J.
This cause comes before the court upon pleadings and proofs, on a bill filed to compel the specific performance of a contract to convey to the plaintiffs a certain farm situated in Lewis county, together with a large quantity of personal property. The bill charges that in the year 1840 the defendant bid off the farm at $2000, on a mortgage sale; and also a large quantity of stock, farming utensils, and other property then on the farm, at a sale upon an execution against the plaintiffs. And that this purchase was made in pursuance of a verbal agreement to allow the plaintiffs to continue [278]*278in the possession of the said farm and personal property, by paying the interest on the auction price of the same; and ultimately to redeem the property by paying up the principal sum paid by the defendant on his purchase, and the interest on the same.
We think this agreement abundantly proved; but we shall spend, no time upon this part of the case, because the rights of the parties depend on certain written agreements subsequently made, which are set out in the pleadings, and concerning which much testimony has been taken. The most that can be made of the large mass of testimony concerning the relative situations of the parties, the condition and value of the property purchased by the defendant, and the mutual acts and declarations of the parties concerning the same, is to aid the court in the construction of the agreements on which the plaintiffs’ claim to relief in this action must of necessity depend. That these antecedent and “ surrounding circumstances” are competent evidence to place the court which is to expound a written instrument, in the same situation, and to give such court the same advantages for construing the instrument, as is possessed by the parties who executed it, is the settled law of the land. (2 Cowen & Hill’s Notes, p. 1399, citing Wigram on Extr. Ev. 59, 138.)
On the 3d of May, 1843, the parties entered into a written contract under their hands and seals, by which the defendant, in consideration of $2600 and of the covenants contained in the said instrument, leased the farm and personal property to the plaintiffs, for one year, at a rent equivalent to the interest on the sums at which the defendant bid off the same. This agreement also contained the following clause: “ It is further covenanted and agreed by and on the part of the said Kitts, that in case said Bellingers shall, at any reasonable time, pay to said Kitts, or secure to him all the interest on the money paid by him towards said place and personal property, and secure the said purchase money, he shall deed and convey to them the said land and personal property. The said personal property shall be made to be as valuable and appraised and made equal to what it was worth when purchased—and if not, it is to be made [279]*279good by said Bellingers, at the expiration of this lease.” The plaintiffs continued in the possession and occupation of this property, both real and personal, paying the stipulated interest and making permanent improvements upon the farm, until the 13th of. March, 1847; when the exact sum which was due for principal and interest was ascertained, and a new agreement was executed between the parties, in which the consideration was stated to be the sum of $2796 instead of the sum of $2600 which had been assumed in the first contract, without a calculation; and omitting the covenant to sell. Otherwise this agreement'was like the first.
Upon this state of facts the counsel of the defendant contends, 1st, that the reasonable time within which the plaintiff had the right to pay for or to secure the payment of the purchase price of the property, and have a conveyance, expired with the current year after the date of the contract. Granting that this would be so, if the occupation had ceased with the year, I can not admit that this consequence will follow when this original agreement was by implication continued from year to year until the execution of the new agreement in 1849. The rights of the parties are to be adjudged as though a new agreement, with the clause concerning the sale of the property, had been made each year, or at the expiration of the period covered by the preceding one. This should certainly be so held, in a case where the defendant has stood by and seen the farm rendered more valuable by permanent improvements, without interposing any notice of a claim that the condition conferring on the plaintiff the right to purchase had become forfeited. 2dly. The counsel also contends that the execution of a new agreement, omitting the provision giving the plaintiffs a right to purchase, cut off all right on the part of the plaintiffs to avail themselves of the condition in the former agreement. On the other side it is insisted that, so far as this condition is concerned, the old contract remains in force, by the express agreement of the parties; and that Mr. Knox, the depositary of the agreement, was specially directed by the parties to hold the old agreement, leaving it, so far as the covenant in question is concerned, a subsisting and [280]*280valid contract between the parties. This leads us to examine the testimony upon this point. The witness Knox, who had been the mutual agent of both parties; who had drafted both agreements ; and who had been present and heard all the negotiations between them, has given a very minute and particular account of the entire transaction. He at first prepared the second agreement with the clause in question inserted in it; whereupon it was objected to by Kitts, on the ground that he did not wish the agreement to contain the words “ executors, administrators and assigns,” for the reason that he did not intend to give the plaintiff a right to sell the place to any one else—still assuring them that he did not intend to object to their paying or securing him what he had paid, and receiving a conveyance of the property ; using the significant expression “ Farmer Jake [meaning himself] will not hurt a hair of your heads, boys.” He did not object to the covenant as he understood it to be expressed in the first agreement; and both parties directed Knox to hold the old agreement, as evidence of that portion of it which was not abrogated. It is true that Nelson Kitts, the defendant’s son, understood the conversation differently, in some respects. But this young man, when he comes to state the objection which his father made to executing the last instrument as it was at first written, states it substantially as Mr. Knox does. He may not have heard the entire negotiation. Mr. Knox did, and the young man may not have understood the conversation in all its parts as Mr. Knox must have done. He may be mistaken ; Knox cannot. Knox swears affirmatively and positively ; and if he swears untruly he does so intentionally, and is guilty of perjury. And there is no possible motive that, on these papers, can be assigned for the commission of such a crime; while a strong motive exists to induce young Kitts to defeat the plaintiffs’ claim, viz. an arrangement by which he is to have the farm himself. This he is compelled to admit on his cross-examination. For these reasons we give credit to Mr. Knox; and therefore hold the old agreement to sell and convey stiff binding on the defendant, notwithstanding the new lease does not contain the clause giving that rights
[281]*281This brings me to a consideration of the only remaining question, which arises upon the tender of the amount due to the defendant and the demand of a conveyance from him.
It is supposed by the counsel of the defendant that a strict legal tender was necessary to authorize a decree on this bill; and that a refusal by the defendant to perform his agreement, upon other grounds, would not excuse the production of the money, and the full amount of it, notwithstanding both parties were mistaken as to the true amount, by means of an error in computation, committed by a common agent. To this doctrine I cannot assent. Even if this question were to be tested in a court of law, and by strict legal rules, no such obligation would rest on the plaintiffs. The cases in which a legal tender is indispensable notwithstanding a refusal to receive the money, and a general refusal to perform the contract, on other grounds, are very few. The general rule is that a strictly legal tender may be waived by an absolute refusal to receive the money; on the principle that no man is bound to perform a nugatory act; Here was a mutual obligation, on the plaintiffs to pay of secure the purchase price, and on the defendants to convey the land and personal property. An offer and readiness to perform, on the part of the plaintiffs, was enough; especially when the defendants refused to convey at all. Even performance of a condition precedent need not be averred, where performance was waived, or prevented by the party to be benefited by it. (1 Chit. Plead. 318.) But, in a court of equity the strictness required in a court of law is not exacted. That court proceeds upon equitable grounds, irrespective of technical forms. A court whose province it is to relieve against strict legal forfeitures will not cut a party off from his equitable rights on account of an omission to produce the money, when the offer to do so was waived. Nor, when the offer was, by the mistake of the agent of both parties, a few dollars less than the sum due; especially when the refusal was put on no such ground, and when it was a substantial refusal to convey at all. The plaintiffs have been compelled to come into a court of equity to enforce their plain equitable rights. They must therefore have [282]*282their costs. The refusal of the defendant to convey was unjust and inequitable.
It must be referred to a master to ascertain the amount due, with interest, for the real and personal property in question*, under the agreement of the parties. And on the payment of the same the defendant must execute conveyances pursuant to the Contracts, with covenants against his own acts. And the decree will also provide that unless the money is paid within fifteen days after the confirmation of the referee’s report, the bill is to be dismissed; with costs.