When the parties met on the 12th day of October, 1894, to .carry ont the contract, the defendant insisted that if the contract was to be completed the plaintiff must pay the Consideration therein named,' and must also pay the amount that the church had been compelled to pay in carrying the property from 'March 1, 1894, to October 12, 1894, and this sum was fix ;d at $3,601.36. . Subsequently, the plaintiff complied with this demand of the church, and paid in addition to the sum of $190,000 this sum of $3,601.36, and it is to recover the amount thus paid- that .this action is brought.
The terms of the agreement between the parties under which this payment was made were disputed. The court submitted this question to the.jury, stating that the question to be determined was “ whether, when this demand for interest and other expenses was made on the 12th of October, that it was made upon an agreement-that it was so' paid, with a view to the submission to a court subsequently of the right to exact it, .and whether there was an understanding among the parties that it was tó be retained by the church only in case it should be ultimately decided they had a right to it.” There was evidence to sustain a finding that there was such an agreement, and the jury, by their verdict, have found that such-an agreement was in fact made, and that the money was paid under it. The court charged the jury: “In order to entitle- the plaintiff to recover it back he must establish to your satisfaction it' was received under an -agreement that it should' be repaid in case the court decided the church was not entitled to it. If you find in favor of the plaintiff upon that dispute as to the agreement, then the question, of course, will arise, 6Was the church- entitled to it?’”
Upon that question the court charged, as a matter of law', that the defendant was not entitled to demand from the -plaintiff at that -time the amount expended by the church in carrying the property from the first of March to the twelfth of October, and the correctness of this decision is the only question presented upon the record in this case. ' . . ' • - -
- When the parties met to complete the'' contract, on the first' of March,- the purchaser- objected to the title on the ground that these restrictions were incumbrances upon the property. The parties agreed to submit that question to the General Term- of the Supreme *507Court upon an agreed state of facts, and upon that submission it was determined that such restriction was an incumbrance, and that the deed tendered by the church was not a compliance with its contract. When the parties met on October 12, 1894, the condition was that the defendant had made a contract to convey property which it could not comply with, and that the plaintiff was entitled to be repaid the money which he had advanced to the church upon the contract. The plaintiff, however, when he insisted upon his right to have a deed to the property and to pay the consideration named in the contract, waived the objection that he had made to the title tendered to him on March first. He was not bound to comply with the contract, because the defendant could not convey to him the title which it had agreed to convey, viz., a good title to the property, free from incumbrances. If, however, he was willing to waive that objection and to insist on defendant conveying the property to him, giving him the title that it was able to convey, the question is, what was he bound to pay to the defendant for the conveyance of such a title % I think that the church had the right to refuse to make a new contract at that time, and could have refused to convey the property under the old contract except upon the payment of the amount named in the contract, with interest from the time that the payment was to be made, and the expenses in carrying the property. It was under no legal obligation to execute the grant upon any other terms. On the other hand, the plaintiff was not bound to accept a conveyance of such title as a compliance with the contract. The condition that then existed, therefore, was, that if the plaintiff wished to insist upon a completion of the contract at that-time, he could only be entitled as a matter of right to a conveyance upon putting the church in the same condition that it would have been in had he complied with his contract on the first of March. In other words, the defendant was not in a position to insist upon .the plaintiff’s completing the contract at all. The plaintiff could insist upon the defendant’s completing the contract only upon his putting the defendant in the same condition that it would have been in had the contract been completed at the date fixed. The defendant demanded that the plaintiff should pay the expense of carrying the property, which would put the defendant in the same position as if he had accepted the deed when tendered. That demand the plain*508tiff at first refused to comply with; but subsequently the undei’- . standing mentioned was reached by which the sum was paid, subject to the subsequent determination by the court as to whether the" defendant was entitled to insist'upon its payment. As before stated, the defendant was not entitled to insist upon a completion' of the contract by the plaintiff, but was bound to repay to the plaintiff the amount that he had advanced, with interest. On the other hand, the church was not bound to make a conveyance of the property,, except upon condition that the plaintiff should pay the expenses occasioned by his refusal to accept the title tendered to him on the first of March ; and the church, resting upon this right, refused to make such a- conveyance unless the plaintiff put the church in the same condition that it would have been in had the plaintiff accepted the title tendered to him. It would seem that in this contention the church was clearly right. It had the right to insist upon this payment as a condition of its conveyance of the property. The plaintiff had stated that he did not wdsh a return of the money paid by him, but wanted the property, and insisted upon a conveyance to him of the title which .the church could have conveyed on the first day of March and which it was then ready and willing to convey. That was the only conveyance it was bound to make; and if the plaintiff wished to insist upon his right to a conveyance of the property rather than a return of the money which he had paid, he was-bound to have accepted that conveyance as of the first of March when the title was tendered to him. The church was under no obligation to carry the property for him from the first of March when he agreed to complete the purchase until the time that he was ready to accept the title tendered. The agreement to submit the question to the court as to the right of the defendant to insist upon this payment must Reviewed in connection,with the position taken by the plaintiff when lie insisted upon a conveyance of the property and would not accept a return of the money paid by him upon the contract. The adjournment of the time for tlie completion of the contract was not at the request or for the. benefit of the church.- The question presented would be quite different if the defendant had refused to give a deed at the time fixed for the closing of the title, and the plaintiff had "then commenced'an action for the specific performance of the contract, then demanding a deed *509of the title that the defendant could convey. In that case a court of equity would have compelled a specific performance and would have compelled the vendor to convey as of the date at which the contract was to be performed ; but here the vendor was ready and willing to convey at the time named, and on the twelfth of October the plaintiff demanded a deed of the premises which he had refused on the first of March. To entitle him to have such a demand complied with, the defendant was entitled that it should be placed in the same position that it would have been in had the contract been complied with and had the plaintiff accepted the deed which was tendered to- him on the first of March.
I think, therefore, that the defendant was entitled to insist upon the payment of this sum of money as a condition for its delivery of the deed on the twelfth of October, and that by the agreement under which the money was paid, the jfiaintiff had no right to have it returned to him.
I think that the complaint should have been dismissed and the judgment reversed and a new trial ordered.
Parker, J., concurred.
Judgment and order affirmed, with costs.