Price against McGrown, 1 Seld. Notes 141

Bill for the specific performance of a contract for the purchase of land. There were two contracts. The first made in February, 1834, was not performed by the purchasers, but was continued by verbal arrangements between the parties until November of that year, when a negotiation commenced, which resulted on the 9th December in a new written agreement, which the complainants claimed was a mere continuation of the former agreement. This agreement was left in escrow in the hands of a third person, to become operative upon the payment of $4,000 by the complainants on the day of its execution.

The condition was not complied with. The defendant then said he would, notwithstanding, receive the money on the following day, and instructed the holder of the contract so to inform one of the parties, which was done. The money was not paid. The court held that the second contract was a substitute for the first; and although conditional and not to become absolute until the $4,000 should be paid, was, from the time of its deposit in escrow, the only contract in existence between the parties.

That the condition upon which it was to become absolute not having been performed, it ceased to have any validity, and could not be enforced. The decree of the Supreme Court, dismissing the bill, was affirmed. (S. C., 2 Barb. 277; 10 N. Y. 465.)