The judge by whom the case was tried has, upon competent evidence, found every fact essential to sustain the action and the judgment given therein. Upon the only question of fact in respect to which there was any conflict of evidence, if it was within the province of this court to review *Page 226 the findings of fact, when there was any evidence to sustain them, we should concur in opinion with the court below.
The balance of evidence was with the plaintiff as to the transactions of the first of December, and clearly showed an assent on the part of the agent of the vendor that the vendee might have the brief time, beyond the hour named for the performance of the contract, necessary to procure the certification of his check. Had it been intended, to hold the plaintiff to a performance at the very minute, the party should have given notice of such intention at the time when the vendee proposed to go for the certification and return to consummate the transaction at a later hour in the day; and no objection being then made, the vendor was estopped from claiming, upon the return of the vendee within a reasonable time, that the right to perform had been lost by lapse of time.
But the objections taken to the judgment, will be considered in the order in which they are made upon this appeal.
1. It is objected that no contract, valid by the statute of frauds, was proved upon the trial. There are several answers to this. 1. It was not taken or made at the trial. 2. A contract of sale was averred in the complaint, and admitted by the answer. If the defendants had intended to insist upon the statute of frauds, or the invalidity of the contract for any other reason, they should have denied the making of the same, and put the plaintiff to proof, or set up the special matter relied upon. Having admitted the contract, and not having pleaded the statute of frauds, or insisted upon it in their answer, the defendants are deemed to have renounced the benefit of it. (Harris v.Knickerbacker, 5 Wend., 638; Cozine v. Graham, 2 Paige, 177.) 2. It is claimed that the plaintiff was in default, in that he was not prepared to accept the deed of the premises, and pay the ninety per cent of the purchase money remaining unpaid, precisely at the hour named for the performance of the contract. He was at the place shortly before the time, prepared to complete the purchase, but was met with the objection, that his check was not certified, and *Page 227 left, with the assent of the seller's agent, to procure the required certification.
Performance at the precise time was waived by the agent, and the vendor cannot claim that this was without authority. It was an act clearly within the scope of his authority, as indicated to the plaintiff, and no secret, undisclosed instructions of the principal to the agent, if any such had existed, restricting and limiting his apparent authority, could affect the rights of innocent third persons. But without this assent, the plaintiff's right in equity to a performance of the contract was perfect. In legal actions the rule is more stringent than in equity, and a party to a contract, asserting his right by an action at law, must bring himself strictly within the terms of the contract; but courts of equity will enforce contracts specifically, when no action for damages could be maintained. (Friess v. Rider,24 N Y, 367; Lennon v. Napper, 2 Sch. Lef., 684.)
Time is not ordinarily regarded in equity as the essence of the contract, unless the parties have so treated it, or it necessarily follows from the nature and circumstances of the contract.
If the party seeking performance has acted with good faith and reasonable diligence, and there has been no change of circumstances affecting the equities of the parties, or the justice of the contract, and time has not been expressly, or by implication, made of the essence of the contract, a court of equity will decree a specific performance, although there has not been a literal performance as to time. (Story Eq. Jur., § 76, and cases cited in notes.) The plaintiff here was guilty of no laches, but was ready, desirous, and eager to perform his contract; and the delay of one hour and a half in the actual tender of the money, was excused by the acts of the vendor's agent, and there is nothing in the character of the property, or the nature of the transaction to indicate that time was intended to be essential. 3d. It is urged that the tender was insufficient, as it was not in money. But it was not refused for that reason. It was rejected because not made *Page 228 in time, and not because the certified check was not money or legal tender. It cannot now be objected, that the party could not have been compelled to accept a certified check in lieu of money. He waived his right to demand the money by not asserting it at the proper time. (Carman v. Pultz, 21 N.Y., 547; U.S. Bankof Georgia, 10 Wheat., 333; Snow v. Perry, 9 Pick., 542.)
The objection to the tender could have been obviated, and, therefore, was waived, not having been taken. 4th. The objection that the defendant, Timothy O'Donovan, was a bona fide purchaser, and therefore, not affected by the equities of the plaintiff, is not sustained by the evidence. The conveyance to him was collusive and to avoid the plaintiff's claim, and was taken by the grantee with full notice and knowledge of all the circumstances. He took his title subject to the equities of the plaintiff, and was properly required to convey to the plaintiff. (Laverty v. Moore, 33 N.Y., 658.)
The judgment should be affirmed with costs.
All concur. Judgment affirmed.