#### DALY v. BRUEN.

(Supreme Court, Appellate Division, Third Department.

November 17, 1903.)

1. Contract for Sale of Land—Changing Time of Performance—Offer to Perform.

Where the parties to a contract for the sale of land change and advance the day for performance, the vendor being then unable to give title, the purchaser, in order to sue for damages, need not renew the offer to perform on the day originally stipulated.

*2.*Same—Breach—Damages.

There is presumed to be some damage for breach of contract for sale of land from inability to give title.

Appeal from Trial Term, Washington County.

Action by James C. Daly against Eliza Bruen. From a judgment for defendant, entered on a nonsuit, dismissing the complaint, directed by the court, plaintiff appeals. Reversed.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Erskine C. Rogers, for appellant.

D. J. Sullivan, for respondent.

HOUGHTON, J.

On the 23d of November, 1901, the defendanentered into a contract with the plaintiff to sell to him, free and clear from incumbrances, certain real property for the sum of $900, payment and the giving of a bond and mortgage for the balance to be made on the 1st day of April following. In case of the failure of either party to perform, damages were stipulated at the sum of $100. Shortly before the 1st of April, the defendant, objecting to going to a lawyer’s office on the 1st of April, requested that a day be appointed before that time to close up the matter. In pursuance of that request the plaintiff wrote the defendant a letter appointing the 31st of March, and naming an attorney’s office. The defendant sent her husband to represent her at the appointed time and place. On that day there confessedly existed incumbrances on the land to be conveyed, consisting of a durable lease and a covenant of yearly payment and support of the defendant’s grantor. In addition to this, the defendant’s grantor was under proceedings to declare him incompetent, instituted shortly after the giving of the deed to the defendant. The plaintiff told the defendant’s husband that he was ready to fulfill his contract, and take the deed, if the *972defendant could give him' a good title, and they finally agreed upon» an attorney to whom should be submitted the matter of title, the-plaintiff announcing his readiness to pay and take the deed provided the attorney said the title was good. After discussion, the-attorney advised that the title was bad by reason of the incumbranees. The parties then left the attorney’s office, the defendant’s, representative expressing his regret that the transfer could not be made, but concurring in the conclusion that it would be impossible-' to give a good title.

We think the granting of a nonsuit was error. It is claimed that the plaintiff should have renewed his offer to perform on the day-following, which was the one stipulated in the contract. The parties had the right to change the day of performance, and, if they did change it, the plaintiff was not obliged to present himself again on the day formerly agreed upon. It was at least a question for the jury whether the defendant, through her representative, had not conceded that a title free and clear from incumbrances could not be given, and acquiesced in the conclusion that the contract on her part could not be fulfilled, as well as whether or not the parties agreed to postpone the fulfilling of the contract until the termination of the lunacy proceedings against defendant’s grantor, or whether plaintiff, by his acts, led defendant to believe he consented so to do. If these questions should have been decided in favor of the plaintiff, then it was not necessary for the plaintiff to prove payment or tender; for where a vendor has contracted to give good' title, and has none, or a defective one, any precedent condition on the part of the vendee, such as tendering payment or security, need not be fulfilled. Ziehen v. Smith, 148 N. Y. 558, 562, 42 N. E. 1080;, Lawrence v. Taylor, 5 Hill, 108; Morange v. Morris, *42 N. Y. 48; Glenn v. Rossler, 88 Hun, 74, 78, 34 N. Y. Supp. 608.

It is urged that the $100 stipulated in the contract cannot be considered as liquidated damages, but must be deemed a penalty. It is not necessary to consider that question at this time. There must be another trial, upon which the situation can be fully disclosed. The plaintiff is presumed to have suffered some damage if the defendant was guilty of a breach of the contract. Whether it is the-amount stipulated by the parties or a lesser sum is not now for us to determine.

The judgment should be reversed, and a new trial granted, with, costs to the appellant to abide the event. All concur.