Buttrick v. Holden
62 Mass. 233
Mass.
1851
Check Treatment
Shaw, C. J.

If the defendant disabled himself from complying with his contract, by conveying the estate to another oerson within the time limited in the contract for making a *236conveyance to the plaintiff, the tender of performance on the part of the latter is not necessary. Newcomb v. Brackett, 16 Mass. 161; Yelv. (Amer. ed.) 76, in notis. The day of the date (April 19th) being excluded, the plaintiff would have been in time to offer performance, at any time on the 9th of May; if therefore during that day the defendant conveyed, it was an excuse.

As to the other point: The suit in equity was between others; it could only be sustained by affecting Bigelow with notice. A judgment for the defendants in that suit therefore does not tend to negative the defendant’s breach of contract, on which this action at law is brought.

Exceptions overruled.