The contract between the parties to this action was a mutual one; and by its terms the plaintiff was required to pay to the defendant the sum of $5,000 before he became entitled to receive or demand from the latter a deed of the premises. It follows, therefore, that the plaintiff’s right to recover herein depended upon his proving either an actual tender of performance on his part or a willingness' and an ability to perform, in case performance was prevented or expressly waived by the defendant. • (■_Beecher v. Conradt, 13 N. Y. *250108; Nelson v. Plimpton Fire Proof Elevator Co., 55 id. 480; Smyth v. Sturges, 108 id. 495.)
There is some evidence in the case tending to show that upon the 9th day of December, 1895, the plaintiff did have the sum of $5,000 deposited in a bank in the city of. Syracuse, subject to his check; and he testifies that he was prepared and willing to pay over the same to the defendant, and that he was also prepared and ready to execute and deliver the bond and mortgage required by the contract. He did not, however, have" the money with him, nor did he tender any check therefor, .nor were the bond and mortgage executed and ready for delivery. And it also appears that he did not demand a deed or bill of sale of the property described in- the contract. On the contrary, it does appear, and this fact is not controverted, that when the parties met upon the second of December, and separated .without consummating their contract, the plaintiff’s attorney-, McFarran, who, it seems, was fully empowered to act for the plaintiff, was informed by the defendant’s attorney that if there was any disposition upon the part of the plaintiff to stand upon technicalities, Mrs. McGuire would tender him a deed of the premises, to which he replied that he would waive any technicality.
Furthermore, upon the trial, the defendant furnished considerable evidence tending to show that when the parties met at Forrestville upon the ninth of December it was claimed by the plaintiff that he. was entitled to a quantity of spruce spars which were standing upon premises known as the “ Blake Tract,” in Herkimer county, which tract was not embraced in any of the. parcels mentioned in the contract. Those spars were 436 in number and were of the value of $1,190.
The defendant and her witnesses testified that this claim upon the part of the plaintiff was disputed ; that she refused to accede to the plaintiff’s demand, and that the plaintiff’s counsel thereupon stated that if he could not have the spars there was no use of talking,, and that they would go no farther in the matter.
This evidence was denied by the plaintiff and his witnesses, who, while admitting that a claim was made to the spars, say that their-delivery by the defendant was not insisted upon, as a prerequisite to the fulfillment of the contract upon the part of the plaintiff.
There is no mention in the contract of any spars; and, conse*251quently, if, as contended by the defendant, the plaintiff did insist, that he was entitled to them, and expressed his unwillingness to consummate. the agreement unless his right to them was conceded, the defendant was unquestionably relieved from any performance 01-tender of performance on her part.
The record before us shows very clearly that there was a sharp conflict of evidence as respects this feature of the case, and an issue, of fact was thereby presented which was very properly submitted to the jury by the learned trial justice. Indeed, that was the principal issue in the case, the court having held with the plaintiff that the defendant’s title to some of the parcels of real estate was not a marketable title. Upon this single issue to which we have adverted the jury found in favor of the defendant, which, of course, defeated the plaintiff’s right to recover" damages. ' The evidence is quite sufficient to support the verdict thus rendered, and we find no justification for interfering therewith.
"We have carefully examined the several exceptions taken by the plaintiff during the progress of the trial, but find in none of them any error which requires a reversal of the judgment and order-appealed from. We conclude, therefore, that the judgment and order herein should be affirmed, with costs. Judgment and ordeiaffinned, with costs.
All concurred, except Follett, J., not sitting.
Judgment and order affirmed, with costs.