REED, V. C.

Bill by Richard O. Bidwell against William F. Garrison for specific performance of a contract for the sale of land. Defendant filed a cross bill, also asking specific performance. Both bill and cross bill dismissed, with leave to amend cross bill.

Henry S. Alvord, for complainant.

J. B. Huffman and J. T. Bird, for defendant.

REED, V. C. On January 1, 1895, Messrs. Bidwell and Garrison entered into an agreement the terms of which are as follows: "Agreement between William F. Garrison, of Goshen, Cape May county, state of New Jersey, and Richard O. Bidwell, of Vineland, Cumberland county, New Jersey, witnesseth: That the said William F. Garrison agrees to sell to the said Richard O. Bidwell, at the rate of seven dollars per acre, the meadow contained in a survey, beginning atthe corner of a former survey in a line of fence from a graveyard, and following the edge of the meadow to the main Bay Shore Road; thence, along the same, southwardly, to the edge of the meadow on the Patterson farm; thence, along the edge of the meadow, southerly, so far as the property of the said William P. Garrison extends, or to the line of ——, the seventy-five acres formerly known as the property of William Douglass to be included. And I, the said Richard O. Bidwell, do agree to accept the same as may be surveyed, and to pay therefor the said sum of seven dollars per acre agreed upon. And the parties above named do further agree to open a ditch or waterway from near the old sluice or stopping (following the old creek) to the Cedar hammocks, the expense thereof to be born equally by the parties, their heirs and assigns; and that the said Richard O. Bidwell shall have the work in charge, and direct and oversee and perforin the same, the expense to be equally borne by the parties, after obtaining what assistance can be had from outside parties. The deed for the above-described premises to be given and consideration paid so soon as a satisfactory survey can be made. In witness &c. [Signed] William F. Garrison. R. O. Bidwell. Witness: John W. Swain." Complainant filed a bill in this court, asking for the specific performance of the contract to convey, entered into by Mr. Garrison. He sets out that, after the agreement was executed, the defendant, Garrison, produced a map and survey of the land to be conveyed, with a description, which survey and description gave the dimensions of one tract at 145 acres, and the dimensions of a second tract at 75 acres; that the complainant opened the ditch named in the contract at an expense of §1,529.04; that about November 7, 1895, he tendered to the defendant the sum of $775.48, this being the difference between the price of the land at the rate of $7 an acre, according to the acreage contained in the survey presented by Mr. Garrison, and the one-half of the expense incurred by the complainant in the opening of the ditch; that defendant refused to give a deed. It appears that the complainant filed an amended bill, setting out that the first tract named in the original bill had, since the filing of that bill, been surveyed at the instance of the complainant, and that, instead of its containing 145 acres, it contained only 120 4/10 acres.

On this bill the question is whether Mr. Bidwell is entitled to a decree that Mr. Garrison shall convey the two tracts of land. Under the agreement, it is to my mind entirely clear that there is nothing whatever to show that the one-half of the expense of opening the ditch was to be allowed in the payment of the consideration of the deed. The tender was, as already observed, not of the full consideration, but was of a sum equaling the difference between the one-half of the expense of cutting the ditch and the consideration computed at the rate of seven dollars per acre. It is therefore entirely clear that this was not a legal tender, unless there was a new agreement subsequent to the written one, already set out, which new agreement bound the parties, that such expense should be allowed in payment of the consideration. Now, when the evidence is inspected, such proof of a new agreement does not appear. Mr. Bidwell says that there was such an agreement to that effect, but Mr. Garrison as confidently denies that any such agreement exists. Mr. Garrison's conduct, in immediately after the execution of the contract having the deed prepared months before the ditch was finished, is inconsistent with the existence of any such understanding at that time. He says that, a few days after the deed was ready, he told Mr. Bidwell that it was ready, and repeated this on other occasions, on one of which Mr. High was present. On this occasion he says that he told Mr. Bidwell that he wanted the money for the land, and Mr. Bidwell wanted him to take the land back. He afterwards said that he was not satisfied with the survey, but he never claimed that he was not to pay until the ditch was finished, and the costs ascertained, so that one-half could be applied in paying for the land. Mr. High says that Mr. Bidwell said to Garrison that he would like to wait until he saw how the creek would perform. Garrison said that he would not wait, and would not take the land back, and Mr. Bidwell said that he would be there in a few days to settle up. Nor does the documentary evidence prove the existence of such an agreement. It only shows that Mr. Garrison was willing to offset such sum as he admitted to be the one-half of the proper expense of opening the ditch, and that sum he fixed as the one-half of $1,027.82, as appears from Exhibit C 8. All the intercourse between the parties merely shows that, if the amount for which Mr. Garrison was liable for cutting the ditch could be adjusted, he was willing that instead of paying this money with one hand, and receiving it back with the other, it should be regarded as an offset. But the testimony fails to show that there was any binding subsequent agreement, for a good consideration, that the price of the land should be partly paid by an allowance of whatever sum should be charged for the expense of cutting the ditch. The tender, therefore, by the complainant, was insufficient.

Now, the defendant not only filed an answer to the bill of complaint, but he filed a cross bill, asking a decree against the complainant that he should specifically perform his part of the contract, by paying the consideration for the property to be conveyed. Now, Mr. Garrison did not, before the filing of his cross bill, make a legal tender, for it was accompanied with an implied demand for the payment of an unproved amount.

The deed prepared by him in January fixes the acreage of the first tract at 145 acres, and there is no proof whatever that this was the correct amount of acreage. What proof there is in the case in respect to that matter is the testimony of Beaton Smith, who swears that he made a survey, which disclosed that the number of acres was 120 4/10 The tender of the deed, if there was a tender, was accompanied with an implied demand that the complainant should pay the sum fixed by the acreage in the deed. There is absolutely no evidence that this amount was due. On the trial, a deed describing the land as containing the less number of acres claimed in complainant's amended bill was tendered by the defendant. Had this tender been made by an answer in the nature of a cross bill filed to the amended bill, accompanied by a demand that complainant should pay the consideration calculated according to the acreage of that deed, the posture of the defendant would have been such that a decree could be made in his favor. In equity, a tender can be made in the pleadings, and need not be necessarily made before the bringing of the suit. Bruce v. Tilson, 25 N. Y. 194; Wat. Spec. Perf. Cont. par. 447. The answer, however, insists upon the accuracy of the description contained in the deed made in January. I may remark, however, that, had the pleadings permitted a decree in favor of Mr. Garrison, it would have been that Mr. Bidwell pay him the consideration calculated according to the amended acreage, less the sum of $513.91, the amount which Mr. Garrison, by Exhibit C. 8, was willing to credit on the consideration, leaving the balance claimed by Mr. Bidwell to be settled at law. If defendant chooses to apply for leave to amend upon equitable terms, I will hear such an application. As the matter stands, in the absence of preponderating evidence that the moiety of the expense for cutting the ditch, beyond the $513.91, should be credited upon the consideration of the deed, the recovery of such moiety is entirely a matter for legal cognizance. I will advice a decree dismissing complainant's bill, with costs, and the cross bill of the defendant also, with costs, subject to the right to apply for leave to amend the answer.