Opinion of the Court, per CHURCH, Ch. J.

it. In such a case the vendee must immediately rescind the contract, and return or offer to return the goods, or he will be foreclosed from all claim. He cannot retain the property, and afterwards sue for damages on account of the inferior quality. (29 N. Y., 358; 1 Seld., 73; 45 N. Y., 265; Pomeroy v. Shaw, not reported.) But when the acceptance is induced by any artifice or fraud of the vendor, the reason and foundation of the rule of its binding force fails. The express or implied assent is wanting.

The complaint alleges that the false branding and other specified fraudulent practices of the defendant induced the plaintiff to believe that the sumac was of a certain quality and manufacture, and prevented a more full and complete examination. Although the other alleged fraudulent acts were not established, yet if the false branding had the effect claimed, it was sufficient to justify the verdict. It is not necessary to prove all the alleged fraudulent acts.

The principal point made by the defendant in this court is upon the refusal of the court to charge that there was no evidence from which the jury would be authorized to infer that the defendant committed any fraud or artifice to prevent or interfere with an examination. This position is not tenable. The contract called for "Triangle R" sumac. There was evidence tending to show that this was an article bought and sold in the market, known to the plaintiff, who had used it at its works for a considerable period; that the bags containing it were branded with a triangular figure inclosing the letter R, which indicated a certain and definite quality of sumac; that the defendant caused a different article to be branded as "Triangle R" sumac; that the plaintiff tested it from a few of the bags, and found it acceptable, and relied upon the brand for the quality of the balance; that the article was, in fact, an inferior article and unfit for plaintiff's use. The defendant introduced evidence tending to establish that the brand in question was not indicative of any particular quality, except that it was a low grade of sumac, and that the article delivered was, in fact, equal to the sample, and that at

Opinion of the Court, per CHURCH, Ch. J.

all events he supposed it was, and gave the plaintiff every opportunity for examination. It was unnecessary to establish that the defendant knew that the article delivered was infeferior to that contracted for.

The question is, whether the acceptance was binding as an assent of the proper quality, and if that was invalidated by the false brand put upon the bags, then there was no acceptance, and if the article was in fact inferior, the defendant's rights were unimpaired when the discovery was made. There was a conflict of evidence upon the points involved, but it was sufficient to authorize the jury to infer that plaintiff was misled and deceived by the false branding. The court submitted the question fairly to the jury and charged nearly every proposition of law requested by the defendant, and if any error has been committed, it was an error upon the facts which we cannot remedy. It is objected that the court erred in allowing evidence of the price paid by the defendant for the sumac. This evidence was contained in a letter to and contract with the witness Haussman, for the purchase by the defendant of the sumac. These papers were produced for the purpose of proving that the brand in question was put on to the bags by direction of the defendant, and if competent for that purpose, their admission would not be incompetent because they contained other facts which were inadmissible. They were not admitted to prove the price paid, but for another

purpose.

It is also objected that the admission of evidence that the sumac worked bad in August, was error, because it was too late, as the delivery was made in June. The answer to this is, that if there was no binding acceptance, as the jury must have found, then the plaintiff was only bound to use diligence in notifying the defendant after the discovery that the article was inferior. It seems that the plaintiff had no use for the sumac until August, and it used a considerable quantity before ascertaining that it was that article instead of some of the other ingredients used in coloring which produced the difficulties experienced. They then notified the defendant's

Statement of case.

managing clerk (the defendant being ill), and made further experiments to test the quality of the article. The questions presented at the trial, as to time, were based upon the acceptance of the article by the plaintiff, in the first instance, and are not tenable after the principal fact was rendered nugatory by that act of the defendant.

There was no legal error committed on the trial, and the judgment must be affirmed.

All concur.
Judgment affirmed.

JOHN A. HUBBELL, Appellant, v. PAULINE VON SCHOENING et al., Respondents.

A court of equity will not, any more than a court of law, excuse laches and gross negligence in the assertion of a right to a specific performance of a contract; but where time has not been made of the essence of the contract by its terms, although there may not be performance upon the day, if the delay is excused and the situation of the parties and property unchanged, and the party reasonably vigilant, the court will relieve from the consequences of the delay.

A party may be held to strict performance as to time, and put in default for non-performance; but to do this, the party seeking to put the other in default must not only be ready and willing to perform, but must tender performance at the time, and demand performance from the other; and then, whether equity will relieve, will depend upon the cireumstances. Each case must be judged by its own circumstances.

Defendants, who were husband and wife, contracted to sell and convey to plaintiff certain premises in New York belonging to the wife, the purchase-money to be paid and deed delivered January 24, 1868. On the 23d, plaintiff applied to defendants' attorney, at whose office the contract was to be performed, for an extension of time, to enable him to complete searches. The attorney promised to send him word when the defendants arrived next day, so that he could see them about it. Not receiving any word, plaintiff waited until four P. M., and then went to the office, where he found the husband, who informed him the wife had gone home and would have nothing more to do with it; he was also informed he could not see her that night. The next morning plaintiff sought the defendants at their house, with the money to make the tender, but was told they were not at home; he thereupon tendered the money to the

Statement of case.

attorney at his office. This was Saturday. On Monday, plaintiff again sought the defendants, but was unable to find the wife. Thereupon plaintiff brought suit for specific performance. Held, that plaintiff was not in default, and was entitled to judgment.

(Argued April 29, 1872; decided May 3, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, affirming judgment in favor of defendants entered upon the decision of the court at Special Term. (Reported below 58 Barb., 498.)

The action was brought to compel the specific performance of a contract for the sale of three lots on One Hundred and Twenty-first street in the city of New York.

Defendants were husband and wife; the property belonged to the wife. By the contract, plaintiff was to pay $1,180 on the 24th day of January, 1868, and was to assume a mortgage upon the premises for the balance of the purchase-money. Defendants, on receiving such payment at the time stated, agreed to convey the premises by warranty deed, the deed to be delivered at the office of Z. W. Butcher, defendants' attorney.

On the twenty-third of January, the day before the time named in the contract for the payment of the purchase-money, the plaintiff applied to the defendants' attorney for an extension of time of performance, to enable him to complete his searches against the property.

The attorney then promised the plaintiff to send him word as soon as the defendants came to his office, if they arrived the next day, so that he might see them about it.

The defendants or one of them was at the office of their attorney, where the deed was to be delivered, from before twelve o'clock of the said day.

The attorney did not, according to his promise, notify the plaintiff of the arrival of his clients.

The plaintiff, after waiting for such notification until about four o'clock, went around to the office of defendants' attorney, where he met Dr. Von Schoening, and was informed

Statement of case.

by him that Mrs. Von Schoening, who owned the property. had been there at twelve o'clock, and, as I was not there, she had gone home, and would have nothing more to do with it. The plaintiff was then informed that he could not see Mrs. Von Schoening that evening, for she would not be at home; but that she would be at home the next morning, when she could be seen.

The defendants lived far up town, at corner of One Hundred and Tenth street and Broadway. The plaintiff went there the next morning, but did not find Mrs. Von Schoening. On the same day the plaintiff tendered the amount due on the contract, at the office of the defendants' attorney. The tender was refused by Mr. Butcher, the attorney, on the ground that "it was a day too late." This was on Saturday. The plaintiff sought defendants on Monday. He saw Dr. Von Schoening at Mr. Butcher's office, and was informed by him that Mrs. Von Schoening had sold the lots. He was unable to see her personally.

Samuel Hand for the appellant. Time was not of the essence of the contract. (Williston v. Williston, 41 Barb., 642; Gale v. Archer, 42 id., 32; Dimick v. Michael, 4 Saund., 426; Edgerton v. Peckham, 11 Paige, 352; Moore v. Sundburgh, 8 id., 600; 26 Wend., 238.) Equity will relieve a party not guilty of gross negligence. (Also, Scarborough v. Arrant, 25 Texas, 129; Harris v. Bennett, 26 id., 568.) Where there is no injury to the party by delay, and the party in default acts with diligence thereafter, equity will not refuse him specific performance, though he should have no redress in a court of law. (Parker v. Therold, 13 Eng. L. & Eq., 416; Davis v. Hare, 2 Scholes & Lef., 347.) Especially where the default is occasioned by mistake or surprise. (Setora Black, 7 Ves., 265.) Where a vendor seeks to make of the essence of the contract by a notification, he must himself be ready upon the day and tender a deed. (Laird v. Smith, 44 N. Y., 618; Smith v. Smith, 2 Hill, 350.)