When the contract for the sale of the property described therein was made, all the fixtures subsequently removed by the tenant were in the building, and in such condition that if they had belonged to the vendor, the plaintiff’s assignor, the title to them, would undoubtedly have passed to the defendant, under the general description in the contract—“store and premises.”
The fact that they belong to the tenant, under such circumstances that he was entitled to take down and remove them, was not made known to the purchaser. Prom the evidence in the case, that fact was apparently not known to Trask, the vendor. But if it were, it clearly appears that he had not in any way advised the purchaser of the fact. On the contrary, the evidence shows that he represented that he was offering the premises for sale just .as they then appeared, with the water and gas pipes, water-closets, basins, &c., as parts of and belonging to the property to be sold. As between him and the purchaser, the contract must be held to be an agreement for the sale of those fixtures, or such of them as would pass as part of the real estate, as much as any of her part of the property; and that that was the understanding of the parties, appears beyond dispute, both from what was said at the time the premsies were shown, and from what was said at the time they met at the office of Mr. Bailey, for the purpose of executing the conveyance. Between the making of *80the contract and the date of that meeting the building had been dismantled, by the removal of the gas and water pipes, water-closets, and the various fixtures enumerated, so that it was at that time in an untenantable condition.
Upon this state of facts the defendant was not bound to receive a conveyance of the property in its altered condition as a performance qf the contract into which he lrad entered; and it was upon this ground, doubtless, that the learned judge, at circuit, directed the verdict for the defendant.
The answer alleged fraud on the part of Trask, the vendor, as a defense. The case, in our judgment, failed to show any fraud on his part; and if the disposition depends upon that question, we should feel it our duty to hold that the court should at least have sent the question of fraud to the jury. But it does not necessarily depend upon that question, for the plaintiff was bound to show upon the trial that his assignor was, on the day and place specified in the contract, -which was the time of the meeting, at the office of Mr. Bailey, ready and willing to perform the contract, by a compliance with its terms, -which he' could only do, under the circumstances, by conveying the property substantially in the condition in which it was when it was sold. If he could not do this, it was no excuse that he was not aware that the tenant in possession was, in fact, the owner, and had the right to remove things apparently appurtenant and belonging to the premises as parts thereof, and the removal of which had seriously diminished their value; nor could he claim the performance on the part of the purchaser by offering to pay to him the money value of the fixtures that had been taken away. To such an offer it was a sufficient answer to say, as the defendant did, that he had bought property in a tenantable condition, fit to be rented without delay, and was not bound to take the *81same in a condition which would require the restoration of appurtenances and fixtures before the same could be rented.
The defendant had a legal right to refuse to accept the conveyance in the condition in which it then was, and the court had not, in an action of this kind, any power to intervene and require him to accept the same upon conpensation for the diminution in its value by the removal of the fixtures. The action is at law, and must stand uponstrictlegal rights. Upon the evidence, as it stood uncontradicted, there was really no question for the jury, and no reason for submitting the question of fraud or good faith on the part of the vendor.
We see no reason for interfering with the verdict on any exceptions taken to the admission of testimony during the progress of the trial.
All that was said and done antecedent to and at the time of making the contract was properly admitted as bearing upon the question of fraud ; and although the defendant failed to establish the allegation of fraud, it does not follow that the verdict should be disturbed if the evidence is admissible as a part of his effort to establish it.
If all that is objectionable is stricken out of the case, there would still remain the controlling fact, that the plaintiff’s assignor had agreed to convey the store and premises, which contained valuable fixtures appurtenant to the land, and forming part of the building, which, at the time of the offer of the conveyance, had been taken down and removed by their owner, so that the store and premises were in material respects not the same property agreed to be purchased.
We think the judgment should be affirmed.
Brady and Wright, JJ., concurred.
Judgment affirmed.