A controversy Laving arisen between the parties to this suit respecting the western line of the defendant’s enclosed land between Vaughan street and the western promenade, the defendant in consideration that the plaintiffs had discontinued so much of the promenade as lies within his enclosure within certain limits, and had agreed “ to release” to him “ all claim of the city to the land covered by such vote of discontinuance “ engaged ” to pay to the city therefor such sum as shall be determined by the arbitration of Stephen Waite, Samuel Small, and William Ross.
The arbitrators have examined the premises, and made their award. The plaintiffs have demanded payment of the sum awarded, which, the defendant declining to make, they have commenced this suit.
In all contracts the intention of the parties must govern. By the terms of the contract, signed by the defendant, the price of the land in' question was to be determined by arbitrators. That sum the defendant was to pay. It was the value of the land to be conveyed to him. Now for what was he to pay it? We think for the release by the plaintiffs of their claim to the land in question — not for the contract to release but for the land released. The plaintiffs were to release their claim to certain premises,' and the defendant was to pay “ therefor ” the sum fixed by the arbitrators as the value of the same. It was not the intention of the parties that the defendant was to pay his money for the chance of compelling a specific performance at the termination of litigation, more or less protracted.
If the plaintiffs claim to enforce the contract of the defendant, they should aver and prove a performance or readiness to perform on their part. It is not requisite that they should tender a deed unconditionally and without payment, but they should be ready to give a deed upon payment. They have neither averred nor shown an offer to deed upon payment by the defendant, and are not entitled to recover. Howland *226v. Leach, 11 Pick., 151. Hunt v. Livermore, 5 Pick., 395. The deed of release to the defendant, and the payment by. him of money “ therefor,” were to be concurrent acts. Lester v. Jewett, 1 Kernan, 453.
The rule of law laid down in Portage v. Cole, 1 Saund., 319, does not apply to the contract in question. This is not a case of mutual covenants. The contract in suit is signed by the defendant alone.
Exceptions overruled.