#### JONES v. WITTNER.

(Supreme Court, General Term, First Department.

June 15, 1894.)

Specific Performance—Good Faith of Plaintiff.

Where a vendee has refused to complete the contract unless the vendor will accept different terms from those agreed on, he cannot afterwards enforce specific performance against the vendor.

Appeal from special term, New York county.

Action by Solomon Jones against Joseph Wittner for specific performance. From a judgment in favor of defendant, plaintiff appeals!

Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

B. N. Cardozo, for appellant.

Adolph Cohen, for respondent.

VAN BRUNT, P. J.

This action was brought to compel the specific performance of an alleged contract for the exchange of property in the city of New York. In the disposition of this appeal it is not necessary to state with particularity the facts which were developed by the testimony. It would appear from the evidence that the plaintiff was a mere dummy, if he ever had any substantial existence, and that his name was used for the purpose of concealing from the defendant the real parties with whom he was dealing. After a considerable number of negotiations, in which an unusual number of alleged brokers seem to have intervened, a payment on account of a contract to be entered into was made by the plaintiff to the defendant, and a receipt given, reciting generally the terms of the proposed contract, it appearing upon the face of this receipt that a more formal contract was to be entered into. At the time fixed for the execution of the formal contract, objections were raised upon the part of the persons pretending to represent the plaintiff, but really representing themselves, that certain leases were upon the premises, and that they would not execute the contract unless additional time was given them, and concessions made in respect to certain mortgages and payments. The evidence more than justified the finding that, at the time of the giving of the receipt in question and the making of the payment, the parties interested were told of the existence of these leases upon the defendant’s premises, and that this excuse in respect to the leases was availed of for the purpose of securing their wishes in reference to the change of terms, they having come to the conclusion that they had probably paid a little too much for the property in question.

It is urged that the receipt upon the part of the appellant was a complete contract, and that therefore the defendant could not show that the existence of these leases was known to the parties interested, and had been disclosed to them prior to the making of the receipt, upon the ground that it varied the terms of the contract. But it is apparent upon a reading of this instrument that it was not intended to be the contract between the parties, but that it was *373a mere general statement, and that the parties were to meet together for the purpose of signing a formal contract, and at that time making an additional payment. The parties having made the payment on account with full knowledge of the existence of these leases, they could not avail themselves of the objection, when the formal contract came to be signed, that the receipt for the money did not mention these incumbrances. As has already been suggested, this question in regard to the leases was a mere afterthought, they having come to the conclusion that they desired a variation in the terms agreed upon, and it was attempted to be used for that purpose. Under these circumstances, certainly the plaintiff cannot come into a court of equity and claim either a completion of this contract or a recovery of the payment which he has made on account. He refused to complete; he failed to comply with the agreement in respect to the execution of the instruments; and it was too late for him upon the trial to attempt to put the defendant in the wrong when the latter had been ready and willing to perform his part of the agreement, and the plaintiff, by the real parties in interest, had refused to carry out his part. It is true that there was an attempt made upon the part of the plaintiff to show that there had been an offer to perform on the 20th of August, the day at which the title was to have been passed. But the evidence upon the part of the defense is that there was no such tender as was alleged on the part of the plaintiff, but that only the money which was to have been paid on the 21st of July was tendered, and that there were no papers offered or shown. It is manifest that the whole plan upon the part of the parties operating in the name of the plaintiff was to force the defendant to accept different terms from those which he had agreed upon, and, upon his refusal to alter the same, they refused to carry out the contract. The defendant was not called upon to hold his property subject to the whims and caprices of these persons. The judgment should be affirmed, with costs. All concur.