Upon the facts reported, we think it very clear that this action cannot be maintained. It is an action of assumpsit to recover the plaintiffs’ expenditures in making cer tain repairs and improvements in a messuage, the property of the defendant, but which he had contracted to convey to the plaintiffs for a stipulated price ; and thereupon the plaintiffs took possession of the premises, and continued their occupation during the time of making the said repairs. By the contract, which was not reduced to writing, the property was to be conveyed subject to a certain mortgage, which the plaintiffs agreed to pay, and to exonerate the defendant from his personal liability therefor. After the repairs and improvements were made, the plaintiffs agreed to transfer their right and interest under the contract to one Barton, and to this transfer the defendant assented. And thereupon the defendant executed a deed of conveyance of the premises to the said Barton, on condition that he should discharge the defendant from his liability for said mortgage debt. This condition has never been performed. No time was limited for the performance, at the time of the conveyance, but it was afterwards agreed that it might be postponed until the spring after the conveyance. If Barton, therefore, *499has not obtained a good and absolute title to the premises, the defect is owing to his own neglect or inability to perform the condition, and not to any fault of the defendant. The condition should have been performed in the spring of 1835, or if that was not so understood by the parties, it should have been performed within a reasonable time. The defendant never took possession o'’ the premises, until November 1835. And he had ever before been ready and desirous to complete the agree ment, and offered to pay $20 tó Barton, if he would exonerate him from his liability for the mortgage debt, according to his contract and the condition of the deed.

Considering these facts, and all the circumstances of the case, we are of the opinion, that the defendant had a right to reclaim the property conditionally conveyed to Barton; and that if he or the plaintiffs have suffered any loss or damage thereby, it is damnum absque injuria.

By the condition of the deed it was provided, that if Barton should fail to pay said mortgage, the said deed was to “ be and remain in all respects null and void.” This was in conformity with the original agreement with the plaintiffs, which agreement the defendant has at all times been ready to perform on his part. It is true that he refused to carry it into effect for the benefit of Prichard and Richmond; but he was under no obligation to treat with them, or to sanction the transfer of Barton’s interest to them.

We are also of the opinion, that after the long and unreasonable neglect of Barton to perform the condition of the deed to him, the defendant was not bound, by any principle of law or equity, to renew the contract, either with Barton, or with the plaintiffs. As therefore no neglect or refusal to fulfil the oral agreement mads by the defendant has been proved, it is very clear, we think, that this action cannot be maintained.

Nonsuit to stand