Opinion
March, 1935.
Present — Sears, P.J., Taylor, Edgcomb, Thompson and Crosby, JJ.
Judgment reversed on the law, with costs, and judgment directed for the defendant, with costs. Memorandum: In order that the plaintiff should recover from the defendant the sum paid by him on account of the purchase price as well as his expenses in examining title, it was necessary for plaintiff to put the defendant in default by tendering the balance of the purchase money on the date provided in the contract. This the plaintiff wholly failed to do. Further he did not prove that the defendant would have been unable to convey the property to him had he made the tender. All concur. (The judgment was for plaintiff in an action to recover money paid upon a land contract.)