By the Court.
—Prior to December 3d, [349]*3491869, plaintiff’s testator and the defendant were the owners of certain real estate and personal property at Trenton, N. J. On that day, the said owners .entered into a contract whereby Myres agreed to sell his said interest (being T7F) to the defendant, for $55,000, to be paid as follows: $4,000 on the execution ■of the contract, $6,000 on delivery of the deed, and the balance, $45,000, to be secured by a bond and mortgage upon the property and policies of insurance to the amount of $25,000. “ The •deed to be delivered February 1st, 1870, or as soon as it may be done after the return of the party of the first part (Myres) from Europe; and in case said deed is not delivered by said My re's at the time aforesaid, said DeMier may sell and dispose of the personal property upon payment of $6,000, in addition to the $4,000 paid this day to said Myres or his agent duly authorized to receive the same.” Myres returned from Europe before February 1st, 1870, and the second cash instalment of $6,000 was paid before the delivery of the deed, and on January 18th, 1870, as shown by the receipt.
Plaintiff claims that a proper deed was tendered to defendant on February 1st, 1870, and also at a subsequent date agreed upon by the parties, which deed defendant refused to accept. That by such refusal (after notice to close the sale by the time specified) defendant had forfeited his rights under said contract, and that plaintiff was entitled to a rescission thereof.
The learned justice who tried the cause has found, as matters of fact, that no such deed as was required by said contract was tendered the defendant, until on or about February 27th, 1870, and that differences existed between the parties as to the form and character of said deed, and continued as a matter of dispute until March 11th, 1870, when defendant received a written notice from Myres, dated March 10th, 1870, that he would be obliged to take steps to enforce the agreement, unless defendant would accept the deed, &c. That defendant, under said contract, entered into and has ever since continued in possession of the rights and interests in said real and personal property, and that on or before March 23d, 1870, he had sold . and delivered all the personal property, referred to in said contract, to the Turkish Government for the sum of $68,000, and [350]*350had received the consideration money therefor. That this action was commenced March 24th", 1870, by the plaintiff’s testator, praying for an injunction restraining defendant from selling, delivering, or removing said property, and for an accounting of the proceeds thereof. That after the commencement of this action, and before answer, to wit, on April 4th, 1870, the defendant tendered the bond and mortgage and policies mentioned in said contract, which Myres refused to accept. These facts fairly present the questions raised on the argument of the appeal. •
That the court had jurisdiction of the action is settled by the-case of Newton v. Bronson (13 N. Y. 587), which holds that a court of equity may enforce specific performance, although the lands are in another State, and the contract was made and to be performed" there, if the defendant was duly served and subjected to jurisdiction. .
The point upon which the case turns, is whether or not time was made essential to the performance of the contract. In order to sustain the affirmative of this proposition, it must appear, 1st, that time was originally of the essence of the contract"; or 2d, that it was ingrafted into it by subsequent notice; or 3d, that the delay was so great as to constitute laches.
The contract in suit specified February 1st, 1870, for its performance, but contained no other stipulation showing any intention to make performance on that day essential. By its very terms, it contemplated and provided for a contingency, by which the deed might be delivered after that date. Time was not therefore originally of the essence of the contract (Hearns v. Tenant, 13 Ves. 287; Roberts v. Berry, 16 Beav. 31; Parkin v. Thorold, Id. 59 ; Leggett v. Edwards, 1 Hopk. Ch. 530 ; Edgerton v. Peckham, 11 Paige, 352).
Did it become essential by subsequent notice ?
• This is a question of evidence (Levy v. Linds, 3 Mer. 81), and the justice has found as a conclusion of law ‘that, previous to the commencement of the, action, plaintiff’s testator gave no notice of) nor claimed any rescission of said contract, or of any desire or intention to do so. ' He has also found that there was [351]*351no such delay by or on the part of the defendant as called for a judgment of forfeiture against him.
If these findings are supported by competent evidence, the decision ought not to be disturbed, unless it appears that gross error has been committed, or great injustice done.
The plaintiff seeks a forfeiture of the contract under which defendant entered into possession of the premises, and upon which he has paid the sum of $10,000. There has been a part performance by him, and nothing remains to render it complete but the delivery of the bond and mortgage and policies called for by said contract. Under such- circumstances it is eminently just that plaintiff should be held to strict proof of the facts that warrant a forfeiture.
Did Myres give such a notice of his intention to rescind the contract as made time essential to its performance % The testimony of Johnson upon this point was, that previous to March 10th, 18.70, he informed defendant that he (Johnson) would come down on the day named with all the papers ready to close the sale, and that if upon that occasion defendant wasn’t ready, it was the last time he would come; that he (Johnson) had been dancing attendance upon defendant for the last two months, and should refuse to do it any longer.
This was not a sufficient notice to rescind the contract. Such intention was not expressed in it. The notice required must be express, distinct, and unequivocal (Fry on Spec. Per. § 728, and cases there cited).
It was held, in Reynolds v. Nelson (6 Mad. 18), that where one party informed the other that non-payment by a day certain would be considered as equivalent to a refusal to perform, this did not amount to a notice that the contract would then be considered as rescinded. On March 10th, 1870, Myres wrote defendant that he had been informed by Johnson that defendant declined to perform the agreement, and then adds, “ if you do not do so at once, I shall be obliged to take steps to enforce the agreement, which I dislike very much to do, as I am tired of lawsuits.” '
It will not, I think, be seriously contended that Myres’ expressed intention on March 10th, 1870, to enforce the agree[352]*352ment, is consistent with the theory that it had been previously rescinded.
But even if time had been made essential to the performance, this might be and was waived by the conduct of Myres (Benedict v. Lynch, 1 Johns. Ch. 370 ; More v. Smedburgh, 8 Paige, 600, affirmed in 26 Wend. 238; King v. Wilson, 6 Beav. 124).
Myres’letter of March 10th, 1870, treated the contract as ■still subsisting, and this gave defendant a right to ask for specific performance (Burgett v. Bissell, 14 Barb. 638).
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By the Court.
—Prior to December 3d, [349]*3491869, plaintiff’s testator and the defendant were the owners of certain real estate and personal property at Trenton, N. J. On that day, the said owners .entered into a contract whereby Myres agreed to sell his said interest (being T7F) to the defendant, for $55,000, to be paid as follows: $4,000 on the execution ■of the contract, $6,000 on delivery of the deed, and the balance, $45,000, to be secured by a bond and mortgage upon the property and policies of insurance to the amount of $25,000. “ The •deed to be delivered February 1st, 1870, or as soon as it may be done after the return of the party of the first part (Myres) from Europe; and in case said deed is not delivered by said My re's at the time aforesaid, said DeMier may sell and dispose of the personal property upon payment of $6,000, in addition to the $4,000 paid this day to said Myres or his agent duly authorized to receive the same.” Myres returned from Europe before February 1st, 1870, and the second cash instalment of $6,000 was paid before the delivery of the deed, and on January 18th, 1870, as shown by the receipt.
Plaintiff claims that a proper deed was tendered to defendant on February 1st, 1870, and also at a subsequent date agreed upon by the parties, which deed defendant refused to accept. That by such refusal (after notice to close the sale by the time specified) defendant had forfeited his rights under said contract, and that plaintiff was entitled to a rescission thereof.
The learned justice who tried the cause has found, as matters of fact, that no such deed as was required by said contract was tendered the defendant, until on or about February 27th, 1870, and that differences existed between the parties as to the form and character of said deed, and continued as a matter of dispute until March 11th, 1870, when defendant received a written notice from Myres, dated March 10th, 1870, that he would be obliged to take steps to enforce the agreement, unless defendant would accept the deed, &c. That defendant, under said contract, entered into and has ever since continued in possession of the rights and interests in said real and personal property, and that on or before March 23d, 1870, he had sold . and delivered all the personal property, referred to in said contract, to the Turkish Government for the sum of $68,000, and [350]*350had received the consideration money therefor. That this action was commenced March 24th", 1870, by the plaintiff’s testator, praying for an injunction restraining defendant from selling, delivering, or removing said property, and for an accounting of the proceeds thereof. That after the commencement of this action, and before answer, to wit, on April 4th, 1870, the defendant tendered the bond and mortgage and policies mentioned in said contract, which Myres refused to accept. These facts fairly present the questions raised on the argument of the appeal. •
That the court had jurisdiction of the action is settled by the-case of Newton v. Bronson (13 N. Y. 587), which holds that a court of equity may enforce specific performance, although the lands are in another State, and the contract was made and to be performed" there, if the defendant was duly served and subjected to jurisdiction. .
The point upon which the case turns, is whether or not time was made essential to the performance of the contract. In order to sustain the affirmative of this proposition, it must appear, 1st, that time was originally of the essence of the contract"; or 2d, that it was ingrafted into it by subsequent notice; or 3d, that the delay was so great as to constitute laches.
The contract in suit specified February 1st, 1870, for its performance, but contained no other stipulation showing any intention to make performance on that day essential. By its very terms, it contemplated and provided for a contingency, by which the deed might be delivered after that date. Time was not therefore originally of the essence of the contract (Hearns v. Tenant, 13 Ves. 287; Roberts v. Berry, 16 Beav. 31; Parkin v. Thorold, Id. 59 ; Leggett v. Edwards, 1 Hopk. Ch. 530 ; Edgerton v. Peckham, 11 Paige, 352).
Did it become essential by subsequent notice ?
• This is a question of evidence (Levy v. Linds, 3 Mer. 81), and the justice has found as a conclusion of law ‘that, previous to the commencement of the, action, plaintiff’s testator gave no notice of) nor claimed any rescission of said contract, or of any desire or intention to do so. ' He has also found that there was [351]*351no such delay by or on the part of the defendant as called for a judgment of forfeiture against him.
If these findings are supported by competent evidence, the decision ought not to be disturbed, unless it appears that gross error has been committed, or great injustice done.
The plaintiff seeks a forfeiture of the contract under which defendant entered into possession of the premises, and upon which he has paid the sum of $10,000. There has been a part performance by him, and nothing remains to render it complete but the delivery of the bond and mortgage and policies called for by said contract. Under such- circumstances it is eminently just that plaintiff should be held to strict proof of the facts that warrant a forfeiture.
Did Myres give such a notice of his intention to rescind the contract as made time essential to its performance % The testimony of Johnson upon this point was, that previous to March 10th, 18.70, he informed defendant that he (Johnson) would come down on the day named with all the papers ready to close the sale, and that if upon that occasion defendant wasn’t ready, it was the last time he would come; that he (Johnson) had been dancing attendance upon defendant for the last two months, and should refuse to do it any longer.
This was not a sufficient notice to rescind the contract. Such intention was not expressed in it. The notice required must be express, distinct, and unequivocal (Fry on Spec. Per. § 728, and cases there cited).
It was held, in Reynolds v. Nelson (6 Mad. 18), that where one party informed the other that non-payment by a day certain would be considered as equivalent to a refusal to perform, this did not amount to a notice that the contract would then be considered as rescinded. On March 10th, 1870, Myres wrote defendant that he had been informed by Johnson that defendant declined to perform the agreement, and then adds, “ if you do not do so at once, I shall be obliged to take steps to enforce the agreement, which I dislike very much to do, as I am tired of lawsuits.” '
It will not, I think, be seriously contended that Myres’ expressed intention on March 10th, 1870, to enforce the agree[352]*352ment, is consistent with the theory that it had been previously rescinded.
But even if time had been made essential to the performance, this might be and was waived by the conduct of Myres (Benedict v. Lynch, 1 Johns. Ch. 370 ; More v. Smedburgh, 8 Paige, 600, affirmed in 26 Wend. 238; King v. Wilson, 6 Beav. 124).
Myres’letter of March 10th, 1870, treated the contract as ■still subsisting, and this gave defendant a right to ask for specific performance (Burgett v. Bissell, 14 Barb. 638).
The authorities upon which the appellant’s counsel relies, ■do not, in my judgment, meet the merits of this action.
In Gale v. Archer (42 Barb. 320), it was the peculiar nature •of the contract that made time essential, and the court so stated.
Wiswall v. McGown (1 Hoff. Ch. 125), holds that the notice to rescind should fix a day for performance, and the time should be reasonable. But the justice has found as a fact that no such notice was given prior to defendant’s offer to perform. ,
Friess v. Rider (24 N. Y. 367) was an action at law upon a contract for sale of real estate, to recover stipulated damages by reason of the vendor’s failure to perform at the time, &c. In such actions time is always essential.
Wiswall v. McGown (2 Barb. 270) holds that a new agreement extending the time for performance is evidence that the parties deemed the time material; but no excuse was offered for the failure to perform on the day named.
Taking into consideration the fact that this action was not commenced to rescind the contract, but that such relief was sought by amendment of the proceedings after defendant had made a tender and offer to perform on his part, and also the fact, that said contract can be carried out according to its terms, I think the judgment rendered was fully authorized by the evidence, and should be sustained.
Judgment affirmed.
Present, Van Brunt, Larremore and J. P. Daiy, JJ.