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12. A contract to sell and convey money on band sufficient to pay

land can only be performed by the whole purchase-price; it was
giving a deed that will vest in the sufficient if he had the means
grantee an indefeasible title. Dela- and resources at command which
van v. Duncan.

485 would have enabled him to pay

if the brick had been delivered.
13. Where, under such a contract, Mount v. Lyon.

552
the vendce is prepared to pay the
purchase-money, but in conse- 16. Where an order is sent to a mer-
quence of the title being incum- chant or manufacturer of goods in
bered the vendor is unable to which he deals, silent as to price,
perform, a tender of the purchase- and the order is accepted, the law
money is not necessary in order to fixes the price at the current rate
preserve the vendee's rights under at which the goods are sold, and
the contract.

Id. the party ordering is equally

bound as if the price had been
14. Defendant contracted to sell and stated in the order. So where an

convey certain premises. At the order is given for two articles
time fixed for performance he was mixed, to a manufacturer of such
unable to give an unincumbered a mixture without specifying the
title. No part of the purchase- proportion of each article, the
money was paid, and defendant manufacturer is empowered to
remained in possession. Plaintiff compound the same in the usual
brought action for specific per- manner in which the mixture is
formance three years and a half prepared for market, and an
after the time fixed for perform- accptance of the order makes a
ance, without giving any notice valid contract to that effect.
meantime of his intent to insist Konitzky v. Meyer.

571
upon the execution of the con-
tract and without excusing the

See TITLE, 1.
delay. Held (RAPALLO and PECK-
HAM, JJ., dissenting), that plain-
tiff was not entitled to the relief
sought.

ld.

WAIVER.

See CORPORATIONS, 1.
15. Defendant contracted to sell and

MORTGAGE, 1.
deliver plaintiff, at Brooklyn, with-

SET-OFF.
in three months, 400,000 brick at
$10.50 per M. Defendants deliv-
ered 213,500 during the specified
time. In an action to recover

WATER-COURSES.
damages for the non-delivery of
the residue, -Held (PECKHAM, J., See O'Riley 0. McCAESNEY (Mem.),
dissenting), that the delivery of the

672.
entire quantity was a condition
precedent of the right of defend-
ants to demand payment, and the
fact that, when they discontinued

WITNESS.
the delivery, plaintiff had not paid
for those delivered was not an 1. Under the provisions of the act
excuse for the non-delivery of the of 1867 (chap. 887, Laws of 1867),
residue; also, that it was not neces- in an action between husband and
sary, as a condition precedent to wife either is a witness in his or
a rigbt of action, for plaintiff to her behalf against the other, save
make a formal demand of the brick, in the cases cepted in said act.
and tender payment therefor at the Southwick v. Southroick. 510
place of delivery; that it was
enough if he was ready and will. 2. This act applied to all trials there-
ing to receive and to pay on deliv- after had in actions pending when
ery; nor was it necessary that it took effect, and under it the hus-
plaintiff should have had, during band or wife can testify to conver-
the whole time specified, a sum of | sations and communications (not

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