So far as the decision of, the questions arising on this appeal is concerned, it makes no material difference whether, as alleged by the defendant, the judgment note was given as security for the performance of his agreement to deliver a good and *116sufficient deed for lot No. 140, or as alleged by the plaintiff, was given for the stipulated price of the stock of boots and shoes sold the defendant, and was to be paid by a conveyance of lot No. 140 subject only to a mortgage of $260. In either case the defendant presented sufficient evidence of compliance by him with his part of the agreement to justify the court in opening the judgment and letting him into a defense. The contention that by his fraud or by bis laches he had forfeited his right to discharge his obligation on the note in the manner indicated cannot be sustained without ignoring much important evidence. There is not the slightest evidence of fraud, and in the absence of an express agreement that it should be made on a certain day, a conveyance free from all incumbrances, except that mentioned in the contract, within a reasonable time, would be sufficient compliance. The contract was made on April 21; as early as July 20 the incumbrance upon the property had been removed, and shortly afterwards a second deed was tendered. In the mean time there had been such negotiations — we refer particularly to Mr. Woods’s receipt of May 15, and the meeting in Mr. Keast’s office on July 7— from which it might fairly be inferred that the defendant was to have a reasonable time within which to clear the property of incumbrances. After a careful examination of the evidence we think a jury would be justified in so finding, and with that fact established in the case we do not think the evidence conclusively shows such lack of diligence in obtaining a discharge of the incumbrances and tendering a conveyance as ought to have moved the court to refuse to open the judgment. We need not further discuss the evidence. As the case is to go to a trial it is not advisable that we should do so. It is sufficient for present purposes to say that in opening the judgment we discover no such abuse of its power as would justify a reversal of the order made by the court below.
The order is affirmed and the appeal dismissed at the costs of the appellant.