Peckham

The defendant entered into a written agreement with plaintiffs, by which he agreed to execute to them on or before December 1, 1888, a conveyance of certain described lots which would vest in plaintiffs “ a good and perfect title ” thereto, provided that plaintiffs should, on or before that date, pay the sum of $8,675, the balance of the purchase price agreed to be paid for such lots. The plaintiffs paid one thousand dollars on account of the purchase price at the date of the agreement. This action is to recover damages from defendant for an *150 alleged failure on his part to make to plaintiffs a deed in accordance with the agreement.

The plaintiffs recovered judgment for the sum of one thousand dollars, and the defendant appeals. The grounds upon which the defendant relies for a reversal of the judgment are: 1. That the complaint does not state a cause of action; and 2. That the evidence shows that he did tender to plaintiffs a deed conveying a perfect title to the lots sold.

1. The plaintiffs were not, under the contract set out in the complaint, entitled to a conveyance of the lots described in the agreement until they first paid, or offered to pay, defendant the balance of…