I can see no reason to doubt that the judgment below was authorized by the facts of the case. The plaintiff paid down $100. He was to pay $400 more on or before the 7th of January following. Not being ready then to pay, it was arranged, for his accommodation, that he should pay $100, and give his note for $300, at sixty days. This he did; and he paid the note at maturity. He had then paid $500, leaving $400, which he was to secure by bond and mortgage dated October 1, 1858, and payable in two years, or sooner. By the contract, as modified by taking the note and thus extending the time of performance, the deed *60was to be given when, the note was paid. Except to pay the note, the plaintiff had nothing more to do- until the deed was tendered, and then he- was to give the bond and mortgage.
It is true that-Fiske told plaintiff at the time he gave him-the extension-that the business must be closed at the maturity of the note, and that no longer' extension would be given. This simply required, plaintiff to pay his note at maturity, to save his default, and then he could not be put in'default until the deed was tendered, and he was thus required to give' the bond and mortgage. As no place was mentioned in the contract for performance, and both parties resided in the state, the vendee could not put the vendor in default without seeking her and offering to perform on his part, and- demanding the deed; and the vendor could not put the vendee in default-without seeking him and tendering the deed and demanding-the bond and mortgage (Franchot agt. Leach, 5 Cow., 506; Smith agt. Smith, 2 Hill, 350; 2 Parsons on Cont., 160). Here nothing was done by either party to put the other in default until 1862, when the plaintiff demanded the deed and1 offered to pay the-balance of the purchase money. The defendants then refused to perform, declared the contract forfeited, and claimed to keep both the land, and the $500 paid.
The proof tends to show, and the court found- that tbfvendor could have found the plaintiff by the exercise of reasonable diligence and good faith, and hence the defendants cannot claim, the position of a vendor who could not find the' vendee for the purpose of making a tender of performance. Hence the defendants-had no-right to declare the contract forfeited on account of any default on the part of the plaintiff, and they can have no defense to this action based on such default.
Courts of equity will sometimes refuse specific performance to a party who has been guilty of laches and great delay. But here the delay seems to have been and was found by the court to have been by common consent, and it does not ap*61pear that the vendor was in any way damaged by the delay. Performance, when offered by the plaintiff in 1862, so far as appears in the case, would have been just as beneficial to her as if it had been in March, 1859.
Hence, I see no reason for disturbing the judgment below, and it must be affirmed with costs.
Leonard, C.The evidence, on examination, appears to support the facts as found by the judge, before whom this action was tided. There is no fact so found, as to which it can be said that there is no evidence tending to maintain it. When there is evidence which, if credited by the judge, referee, or jury, before whom the action was tried, maintains the facts as found, or supports the verdict as rendered, this court is not at liberty to disturb the report or the verdict. Such I conceive to be the situation of the present case. It is only when there is an entire failure of evidence that this court are at liberty to reverse a judgment upon the facts. Here, the facts as found are plainly deducible from the evidence, and the exceptions on that ground are not well taken.
The contract of the parties names a day when a sum of money is to be paid, amounting, with the sum paid when it was signed, to $500, the whole consideration being $900. On the day when the last payment was to have been made, according to the terms of the contract, the defendant Smith was to deliver her deed for the land on receiving the said payment, and the plaintiff agreed to deliver his bond and mortgage for the residue of the consideration, $400, payable in two years, with half yearly interest, on the delivery of the deed by the defendant Smith, free of incumbrance. On the day named the sum of $100 was paid, and a note for sixty days for the residue of the cash payment was accepted by the defendants, and the time for the exchange of the deed and the bond and mortgage was extended to the following 14th March, when the note became payable. The defendants *62notified the plaintiff when the note was accepted and the time extended, that the business must be closed when the note became due.
The plaintiff paid the note at maturity, but neither party insisted upon closing the contract by the final exchange of papers, as provided by the agreement. The provisions of the contract were dependent upon performance by the other, before either could be put in default. A period was fixed when either of them, by the performance of the stipulated condition, could put the other in default. No such step was taken. The contract remained without further performance by either party for five years. The rights of the parties were not affected by the notice of the defendants that they would insist upon closing the contract at the extended day. They did not do so by a tender of their deed and a demand of the bond and mortgage. This was a condition precedent to the delivery of the mortgage. It is impossible to perceive that either party could complain of the other without first tendering a full performance. Both parties -remained passive. The contract was not annuled or abrogated by the omission or neglect to act for the pur-pose of bringing it to a termination. Slumbering upon their respective rights would terminate the contract only by such an efflux of time as would create a bar by the statute of limitations. Within that period the plaintiff offered to pay up the sum remaining due, and demanded a deed. This was refused, the defendants claiming that the plaintiff had forfeited all right to a deed by his neglect to deliver his bond and mortgage at the appointed time, and that he had no just or legal claim for a repayment of the sums theretofore paid by him. The claim made by the defendants was not as upon a rescission, but for a forfeiture of the contract. The plaintiff had neglected its performance no more than the defendants, and his right of action either to recover damages of the defendant Smith for non-performance, or for a specific performance, after a tender of the mortgage or the *63money, the two years having expired, was still perfect when the deed was demanded.
The defendants insist that they were nnable to find the plaintiff in order to tender the deed after the payment of the note, and that they are for that reason excused from an offer to perform. This statement is hardly to be credited, inasmuch as the plaintiff was generally to be found within the city of his residence. If true, however, the defendants were not without remedy. The rights of the plaintiff could have been foreclosed by an action, and if the defendant could not be personally served, another manner of service is provided by the Code, if a proper case should be presented.
The judgment should be affirmed.
All concur for affirmance. Judgment affirmed with sosts.