12. A contract to sell and convey
land can only be performed by
giving a deed that will vest in the
grantee an indefeasible title. Dela-
van v. Duncan.
485

13. Where, under such a contract,
the vendee is prepared to pay the
purchase-money, but in conse-
quence of the title being incum-
bered the vendor is unable to
perform, a tender of the purchase-
money is not necessary in order to
preserve the vendee's rights under
the contract.
Id.

14. Defendant contracted to sell and
convey certain premises. At the
time fixed for performance he was
unable to give an unincumbered
title. No part of the purchase-
money was paid, and defendant
remained in possession. Plaintiff
brought action for specific per-
formance three years and a half
after the time fixed for perform-
ance, without giving any notice
meantime of his intent to insist
upon the execution of the con-
tract and without excusing the
delay. Held (RAPALLO and PECK-
HAM, JJ., dissenting), that plain-
tiff was not entitled to the relief
sought.

Id.

15. Defendant contracted to sell and
deliver plaintiff, at Brooklyn, with-
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
damages for the non-delivery of

money on hand sufficient to pay
the whole purchase-price; it was
sufficient if he had the means
and resources at command which
would have enabled him to pay
if the brick had been delivered.
Mount v. Lyon.
552

16. Where an order is sent to a mer-
chant or manufacturer of goods in
which he deals, silent as to price,
and the order is accepted, the law
fixes the price at the current rate
at which the goods are sold, and
the party ordering is equally
bound as if the price had been
stated in the order. So where an
order is given for two articles
mixed, to a manufacturer of such
a mixture without specifying the
proportion of each article, the
manufacturer is empowered to
compound the same in the usual
manner in which the mixture is
prepared for market, and an
accptance of the order makes a
valid contract to that effect.
Konitzky v. Meyer.

See TITLE, 1.

WAIVER.

See CORPORATIONS, 1.
MORTGAGE, 1.
SET-OFF.

WATER-COURSES.

571

dissenting), that the delivery of the
entire quantity was a condition
precedent of the right of defend-
ants to demand payment, and the
fact that, when they discontinued
the delivery, plaintiff had not paid
for those delivered was not an
excuse for the non-delivery of the
residue; also, that it was not neces-
sary, as a condition precedent to
a right of action, for plaintiff to
make a formal demand of the brick,
and tender payment therefor at the
place of delivery; that it was
enough if he was ready and will-
ing to receive and to pay on deliv-
ery; nor was it necessary that
plaintiff should have had, during
the whole time specified, a sum of