By the Court,
Brown, J.
This is an appeal taken by the defendant from a judgment given against him at the special term. The plaintiff’s action is upon an agreement, under seal, [144]*144for the sale and conveyance of certain lands in the .county of Dutchess. He averred, in his complaint, a readiness to perform the covenants on his part, and “ that he attended at the time and place in the agreement mentioned, and offered and tendered to the defendant the payments in and by the said agreement specified, by a bond and mortgage as therein mentioned, and the payment of the residue in cash.” This was denied by the answer, and constituted the principal question litigated at the trial. A tender has a definite, legal signification. It imports, not merely the readiness and an ability to pay the money, or to deliver over the deed, or the property, at the time and place mentioned in the contract, but also the actual production of the thing to be paid or delivered over, and an offer of it to the person to whom the tender is to be made, A money tender means an offer to pay in specie, and in the description of coin made current by the act of congress. Under a plea of tender, however, the party is not required to prove a literal and actual compliance with all the requisites of a legal tender, as it is defined in the books, in order to maintain the issue. He may prove his averment by showing an offer to pay in bank notes, which were not refused on account of the character of the medium; or he may show that when about to produce the money, or thing to be tendered, his adversary told him it was unnecessary, and that he would not accept it; or any other act or declaration by which some of the formal requisites of a strict legal tender were dispensed with. Any evidence, therefore, which tended to show that the defendant waived the- performance of any of those acts which the law demands, in order to make out a tender, was admisssible under the pleadings, and relevant to one of the principal questions in controversy. (Douglas v. Patrick, 3 Term Rep. 683. Wright v. Reed, Id. 544. Thomas v. Evans, 10 East, 101. Bac. Abr. tit. Tender, B. 1, 447. United States Bank v. Bank of Georgia, 10 Wheat. 347. Harding v. Davies, 2 Car. & Payne, 77.)
The obligation of the defendant was to execute and deliver, at the time and place appointed by the contract, a proper conveyance, for conveying and assuring the fee simple of the prem[145]*145ises to the plaintiff, free from all incumbrances. The evidence disclosed his entire inability to do any thing of the kind; for it appeared that a portion of the premises, containing forty-eight acres, were charged and incumbered with the inchoate right of dower of Eugenia Baker, the wife of Valentine Baker, a former owner, and from whom the defendant derived his title. It also appeared that the parties met at the time and place appointed for the execution of the contract, and that the plaintiff had the mortgage then with him, ready executed, for a part of the purchase money, and offered it to the defendant. He also said he had the money ready, and asked if specie was required, and was informed that it was not. The money was not produced and exhibited, or offered to the defendant, and the question occurs whether the omission of the defendant to discharge the premises from Mrs. Baker’s inchoate right of dower, and his inability to assure a good title, relieved the plaintiff from the obligation to produce and make an actual offer of the money. The obligations of the parties were mutual. The defendant was to convey and assure the title, and the plaintiff was to execute and deliver the mortgage and pay the residue of the purchase money, The covenants are dependent, for the conveyance and the seeming and payment of the purchase money were to be simultaneous acts. When there is an existing capacity in the party who is to convey, to give a good title, his obligation is not perfect until the party who is to receive the conveyance produces and offers to pay the purchase money. But where there is the entire absence of a capacity to give a good title, I apprehend no such production and offer is required. What the books denominate a waiver of any of the formalities of a tender, is but the annunciation of the same rule, under another name. The cases already quoted, show that the production and offer to pay the money, may be waived. In the application of this rule to the common law forms of special pleading, Mr. Chitty, in his treatise, has these directions : “ In stating an excuse for non-performance of a condition precedent, the plaintiff must, in general, show that the defendant either prevented the performance, or rendered it unnecessary to do the prior act, by his neglect, or by his dis~ [146]*146charging the plaintiff from performance.” (1 Chit. PI. 318.) The actual offer of the money may be waived, by express words, spoken at the time. Such as a direction not to produce the money, or any other language amounting to a refusal to receive it; because a tender, or offer, after such refusal, would be a mere idle and nugatory act, Avhich the laAV will not require in any case. The tender may also be dispensed with, by acts without Avords. The omission of the vendor to attend at the time and place appointed for the consummation of the contract: his "alienation of the estate to some other person; his suffering a judgment to be taken against himself for an amount greater than the value of the property, and his omission to have it released, or satisfied of record; his inability or neglect to discharge the estate from any other cloud or. incumbrance; could not'be regarded in any other light than an absolute Avaiver; because the production and offer of the money, in the face of any of these facts, would be an act utterly nugatory, and which must be unattended with any useful result. Unless the law, in regard to contracts for the sale of real property, has come to be a repetition of useless and unmeaning ceremonies, a contracting party who suffers the subject of the contract to be charged with incumbrances of his own creation, or to remain charged with those created by others, in breach of his covenant to assure a good title, as fully and effectually Avaives and relieves the covenantee from the actual production and offer of the purchase money, as he could do by the use of express words, or by any other means within his power. When he has- no title, or his title is defective, at the time when the conveyance is to be made, any condition precedent, such as tendering, paying, or securing the purchase money, need not be fulfilled. (Bellinger v. Kitts, 6 Barb. S. C. R. 273; Lawrence v. Taylor, 5 Hill 107, and the authorities there referred to.) I am, therefore, of opinion, that the omission of the defendant to discharge the lands to be conveyed from the inchoate right of doAver of Eugenia Baker, the wife of the former OAvner, dispensed with the production and actual offer to pay the consideration money, [147]*147at the time and place appointed for the consummation of the contract.
[ Kings General Term,
October 6, 1851
The amount of the damages which the plaintiff was entitled to recover, is the only remaining question presented by the bill of exceptions. In the closing stipulation of the contract, the parties have chosen to liquidate and ascertain, in advance, what these damages should be.
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By the Court,
Brown, J.
This is an appeal taken by the defendant from a judgment given against him at the special term. The plaintiff’s action is upon an agreement, under seal, [144]*144for the sale and conveyance of certain lands in the .county of Dutchess. He averred, in his complaint, a readiness to perform the covenants on his part, and “ that he attended at the time and place in the agreement mentioned, and offered and tendered to the defendant the payments in and by the said agreement specified, by a bond and mortgage as therein mentioned, and the payment of the residue in cash.” This was denied by the answer, and constituted the principal question litigated at the trial. A tender has a definite, legal signification. It imports, not merely the readiness and an ability to pay the money, or to deliver over the deed, or the property, at the time and place mentioned in the contract, but also the actual production of the thing to be paid or delivered over, and an offer of it to the person to whom the tender is to be made, A money tender means an offer to pay in specie, and in the description of coin made current by the act of congress. Under a plea of tender, however, the party is not required to prove a literal and actual compliance with all the requisites of a legal tender, as it is defined in the books, in order to maintain the issue. He may prove his averment by showing an offer to pay in bank notes, which were not refused on account of the character of the medium; or he may show that when about to produce the money, or thing to be tendered, his adversary told him it was unnecessary, and that he would not accept it; or any other act or declaration by which some of the formal requisites of a strict legal tender were dispensed with. Any evidence, therefore, which tended to show that the defendant waived the- performance of any of those acts which the law demands, in order to make out a tender, was admisssible under the pleadings, and relevant to one of the principal questions in controversy. (Douglas v. Patrick, 3 Term Rep. 683. Wright v. Reed, Id. 544. Thomas v. Evans, 10 East, 101. Bac. Abr. tit. Tender, B. 1, 447. United States Bank v. Bank of Georgia, 10 Wheat. 347. Harding v. Davies, 2 Car. & Payne, 77.)
The obligation of the defendant was to execute and deliver, at the time and place appointed by the contract, a proper conveyance, for conveying and assuring the fee simple of the prem[145]*145ises to the plaintiff, free from all incumbrances. The evidence disclosed his entire inability to do any thing of the kind; for it appeared that a portion of the premises, containing forty-eight acres, were charged and incumbered with the inchoate right of dower of Eugenia Baker, the wife of Valentine Baker, a former owner, and from whom the defendant derived his title. It also appeared that the parties met at the time and place appointed for the execution of the contract, and that the plaintiff had the mortgage then with him, ready executed, for a part of the purchase money, and offered it to the defendant. He also said he had the money ready, and asked if specie was required, and was informed that it was not. The money was not produced and exhibited, or offered to the defendant, and the question occurs whether the omission of the defendant to discharge the premises from Mrs. Baker’s inchoate right of dower, and his inability to assure a good title, relieved the plaintiff from the obligation to produce and make an actual offer of the money. The obligations of the parties were mutual. The defendant was to convey and assure the title, and the plaintiff was to execute and deliver the mortgage and pay the residue of the purchase money, The covenants are dependent, for the conveyance and the seeming and payment of the purchase money were to be simultaneous acts. When there is an existing capacity in the party who is to convey, to give a good title, his obligation is not perfect until the party who is to receive the conveyance produces and offers to pay the purchase money. But where there is the entire absence of a capacity to give a good title, I apprehend no such production and offer is required. What the books denominate a waiver of any of the formalities of a tender, is but the annunciation of the same rule, under another name. The cases already quoted, show that the production and offer to pay the money, may be waived. In the application of this rule to the common law forms of special pleading, Mr. Chitty, in his treatise, has these directions : “ In stating an excuse for non-performance of a condition precedent, the plaintiff must, in general, show that the defendant either prevented the performance, or rendered it unnecessary to do the prior act, by his neglect, or by his dis~ [146]*146charging the plaintiff from performance.” (1 Chit. PI. 318.) The actual offer of the money may be waived, by express words, spoken at the time. Such as a direction not to produce the money, or any other language amounting to a refusal to receive it; because a tender, or offer, after such refusal, would be a mere idle and nugatory act, Avhich the laAV will not require in any case. The tender may also be dispensed with, by acts without Avords. The omission of the vendor to attend at the time and place appointed for the consummation of the contract: his "alienation of the estate to some other person; his suffering a judgment to be taken against himself for an amount greater than the value of the property, and his omission to have it released, or satisfied of record; his inability or neglect to discharge the estate from any other cloud or. incumbrance; could not'be regarded in any other light than an absolute Avaiver; because the production and offer of the money, in the face of any of these facts, would be an act utterly nugatory, and which must be unattended with any useful result. Unless the law, in regard to contracts for the sale of real property, has come to be a repetition of useless and unmeaning ceremonies, a contracting party who suffers the subject of the contract to be charged with incumbrances of his own creation, or to remain charged with those created by others, in breach of his covenant to assure a good title, as fully and effectually Avaives and relieves the covenantee from the actual production and offer of the purchase money, as he could do by the use of express words, or by any other means within his power. When he has- no title, or his title is defective, at the time when the conveyance is to be made, any condition precedent, such as tendering, paying, or securing the purchase money, need not be fulfilled. (Bellinger v. Kitts, 6 Barb. S. C. R. 273; Lawrence v. Taylor, 5 Hill 107, and the authorities there referred to.) I am, therefore, of opinion, that the omission of the defendant to discharge the lands to be conveyed from the inchoate right of doAver of Eugenia Baker, the wife of the former OAvner, dispensed with the production and actual offer to pay the consideration money, [147]*147at the time and place appointed for the consummation of the contract.
[ Kings General Term,
October 6, 1851
The amount of the damages which the plaintiff was entitled to recover, is the only remaining question presented by the bill of exceptions. In the closing stipulation of the contract, the parties have chosen to liquidate and ascertain, in advance, what these damages should be. The case does not fall within that class where the sum fixed is to be regarded in the nature of a penalty. The damages, to the purchaser, in case the vendor failed to execute the deed and assure the title were altogether uncertain, and depended upon considerations which none could comprehend as well as themselves. Their power to contract, in respect to these damages, can not now be controverted. It is settled, upon authority which admits of no dispute, that there is “nothing illegal or unreasonable in the parties, by their mutual agreement, settling the amount of damages, uncertain in their nature, at any sum upon which they may agree.” (Dakin v. Williams, 17 Wend. 447, and the authorities there quoted.) When the damages to be recovered are liquidated in advance by the terms of the contract, it is a mistake to assume that the party claiming is alone benefited. Such a stipulation may be as beneficial to the party who pays, as it is to him that receives. Both enter into the contract with a full knowledge of all their rights and liabilities. The amount to be paid is not to be diminished, neither is it to be enlarged. Each may estimate the consequences of a breach, with certainty and precision, and deport himself accordingly.
There is nothing in the amount of the damages which requires us to interfere. The judgment must be affirmed.
Morse, Barculo and Brown, Justices.]