#### Mutual Life Insurance Company of New York v. Leonard, appellant.

*Contract—sate of real estate—release from performance.*

.Defendant contracted to purchase certain real estate of S. and to pay a specified part of the purchase price on October 1st, at which time S. was to give a deed. By mutual agreement the time of performance was extended. At the second date agreed upon, defendant started for the place where the contract was to he performed ready to fulfill his part, hut was turned hack hy a message from S. that the deed was not ready, and defendant need not come. *Meld,*that defendant was released from all ohligation to perform the contract.

Appeal from a judgment in favor of plaintiff, entered upon the report of a referee. The action was brought to recover the sum of $100, claimed to be due upon a contract made by the defendant with one Gilbert Scofield for the purchase of a lot of land.

By the articles of agreement, dated August 9,1871, said Scofield agreed to sell, and the said defendant to purchase, a lot of seventy-five acres of land situate in 0 airfield, Genesee county, for the price of $1,000; of which sum $100 was to be paid October first, and the remaining $900 in nine equal annual payments with interest, to be secured by a bond and mortgage of the defendant, which, with the deed, were to be executed and delivered on the said first day of October.

The cause was referred to a referee for trial, and tried by him. He found, in his report, that the parties agreed by parol that the execution of said deed and mortgage, and the payment of the money, should take place in the village of Batavia, and the parties were to meet there for that purpose. He also found that the time for performance of said contract was extended beyond the first day of October by agreement of the parties, to take place within a reasonable time thereafter; that the parties did not meet at all at Batavia, and that on the eighth of December, afterward, Scofield tendered a deed of said premises to defendant and demanded payment of the $100, which was refused.

By the evidence it appeared that, about the first of October, the time for the fulfillment of the contract was extended two weeks by mutual agreement. Hpon the day to which it was extended defendant started for Batavia, ready to perform his part of the agreement, *426but was turned back upon receiving a message that Scofield was not ready to give the deed.

The referee reported that the plaintiff was entitled to recover, and rendered judgment for the $100 and interest, from which the defendant duly appealed to this court.

*Graves & Pitts,*for appellant.

*Peck & Bowen,*for respondent.

E. Dabwin Smith, J.

The time fixed in the contract for its performance was October 1,1871. The giving of the deed and the bond and mortgage, and the payment of the $100, were to be simultaneous acts. Neither party was at Batavia, the place agreed upon for the performance of said contract, on the said first day of October, but the time for such performance was extended two weeks by mutual agreement. At the expiration of the two weeks, and while the defendant was on his way to Batavia with the money to fulfill the contract on his part, he received notice from Scofield not to go to Batavia as he had to go,away, and was not ready to give the deed.

The parties did not meet at this time, and no other agreement was made for the extension of the time of performance. I think, the referee erred in finding that the agreement to extend the time of performance was an agreement for an extension for a reasonable time. It was an explicit agreement for an extension for a fixed and definite time of two weeks. The failure of the plaintiff Scofield to attend at that time at Batavia, ready to perform the contract on his part, was his own fault and without the assent of the defendant, and as the latter was notified not to attend at the said time and l place, and that Scofield was not ready to deliver the deed at such time and place, he was excused from attendance at such place and time, and discharged from all obligation to perform such contract.

The referee clearly erred in finding that the plaintiff was entitled to recover. Upon the clear 'and undisputed facts of the case. Scofield, the plaintiff’s assignor, was not ready to perform on his part, and did not offer at the proper time to perform, and in such case the plaintiff had no right of action against the defendant for his non-performance.

The judgment should be reversed and a new trial ordered, with costs to abide event.

*tJudgment reversed and new trial ordered.*