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BABAHAMY et al. v. ALEXANDER.D. G., GaUe, 3,119.18M.July 16.
Legal tender—Agreement to sell land—Tender after lapse of term of agree-ment—Time, of the essence of the contract.
Defendant, as owner of a parcel of land, promised to convey thesame to S, on a certain sum being paid by S to defendant withinfour yews of the date of promise. Defendant further agreed notto sell or gift the land to anyone else within the four years. Shaving died, a notary on behalf of S’s heirs met defendant on a daywithin the four years, and told him that he had the money and theconveyance ready and requested him to sign the conveyance andreceive the money. Defendant refused to do so,—
Held, that the notary’s act did not amount to a legal tender ofthe money. The tender should not have been conditional ondefendant signing a deed which he had no opportunity of examin-ing ; and a mere statement that money was ready without its beingoffered for acceptance was not sufficient to constitute tender.
Held further, that in the above agreement time was of the essenceof the contract. If the four years expired without payment orlegal tender of the money, defendant was absolved from his promise.
HTHIS was an action by the plaintiffs as heirs of one Elias deSilva to enforce specific performance by the defendant ofan agreement dated the 24th July, 1890, to convey to Elias de Silvaa certain parcel of land. According to the agreement, if withinfour years of its date the sum of Rs. 634 was paid by Elias de Silvato the defendant, the defendant was to execute a conveyance inhis favour for the said land. The defendant pleaded that the moneywas not tendered within the four years. The plaintiffs led evidenceto prove a tender on 23rd July, 1894, and in addition contendedthat time was not of the essence of the contract, and that theinstitution of the action on the 20th August and deposit of money inCourt on the 12th September, 1894, constituted a tender in time.The District Judge was not satisfied with the evidence of the allegedtender on the 23rd July, and dismissed the plaintiff’s claim. Theplaintiffs appealed.
Sampayo and Wendt, for appellants.
Dornhorst, for respondent.
16th January, 1896. Lawkte, J.—
The issue on which the parties went to trial was, Did the plaintiffstender the money, and were they ready to pay it ?
No date is stated in the issue as the day of the alleged tender.The learned District Judge held that the proof of tender on 23rdJuly was so weak that he could not give judgment on it. I do notdisturb that finding. I take the evidence of Mr. de Abrew ascorrectly describing all that took,place on 23rd July. He saidthat he and two others went to Baddegama, not having made anappointment with the defendant, and met him in a field; that he
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1896. told the defendant he was ready with the money and the transfer.
July 16. The defendant said he had suffered some damage, and Until, heLawrie, J. was paid that he would not sign the re-transfer. Mr. de Abrewsaid he did not show defendant the money. The evidence of otherwitnesses who differ from Mr. de Abrew in saying that the moneywas shown to the defendant is not worthy of credit. It is impossibleto believe that the notary public could forget so material an act.If the money was offered, it must have been on the .notary’s order,but he says that the money was not shown.
This conversation, as recorded by Mr. de Abrew, was not a tender.In the first place, it was not an unconditional offer of money. Itwas conditional on the defendant there and then signing a deedwhich the notary said he had brought with him. The defendantwas entitled to refuse to sign a deed which he had had no oppor-tunity of examining. It is not clear what objection he stated, butif (as seems probable) he objected to at once signing the transfer andto yielding possession without compensation for the crop on theland, his objection may have been reasonable. In the second place,the money was not offered. It has been repeatedly held that amere statement that money is ready is not sufficient.
I think that the District Judge rightly held that there was nota tender on the 23rd July. Mr. Sampayo argued that time was notof the essence of the contract, that the institution of this action onthe 20th August and the deposit of the money on the 12th Septemberwas a tender in time. That, however, was not the position taken bythe plaintiff in his plaint. I may, however, say that in my opiniontime .was of the essence of the contract. The defendant was-theowner of lands which the plaintiffs’ ancestor desired to re-purchase.On the narrative that a sum of Rs. 634 had been spent by defendanton and for the land, the defendant executed on 24th July, 1890, a
deed that “ if-the said sum of Rs. 634 be paid to mewithin
“ four years from the date hereof, I do hereby agree to get a bill of“ sale written conveying all the right, &c., and to grant unto the“ said Elias de Silva and to his heirs, executors, administrators of“ his estate, and I do hereby direct that during the said term of four“ years either I or the heirs of my estate shall not sell nor gift.”The defendant was entitled to a strict construction of this engage-ment. He had promised to refrain from alienating his land, andhad promised to re-convey it, provided the plaintiff paid him Rs. 634within a given time. If that time expired without payment or• legal tender of the money, the defendant was ■ absolved from hispromise.
I would affirm with costs.
Withers, J.—I concur.
BABAHAMY et al. v. ALEXANDER