GOODE, J.
(after stating the facts). — The conflict in the testimony hearing on certain issues is admitted. by counsel for plaintiff; but the position taken is that, notwithstanding this conflict, the verdict was manifestly for the right party, inasmuch as the plaintiff was entitled to a direction for a verdict in his favor. In support of this position it is argued that all the facts essential to plaintiff’s right to recover were admitted. The essential facts are said to be: The execution of the contract, the two payments by plaintiff on the purchase price, the existence of incumbrances on the property exceeding $14,000, until long after the sixty days stipulated for performance had expired, and the assignment of Stephenson’s rights under the contract to the plaintiff. It. is true those facts were admitteid; but in our opinion the proposition that they entitled the plaintiff to a verdict is unsound. It was necessary to show further that Stephenson was ready and Avilling to perform the contract on his part and offered to do so. It is argued for the plaintiff that no offer of the kind was incumbent on Stephenson and those interested with him, for the reason that Stephenson was under no obligation to offer the final payment until the defendant tendered a deed conveying a clear title. That is to say, the defendant was bound to move first in the matter of performance ; and as it never tendered a deed Avliich constituted performance of the condition on which Stephenson had agreed to pay, he was never in default, and, hence, can maintain this action. Stephenson’s agreement to pay and the defendant’s agreement to convey a clear title were concurrent and dependent conditions, and performance, or an offer to perform, by either party was essential to put the other in default and lay the foundation for an action by the party who had performed, for damages or to enforce performance. [Guthrie v. Thompson, 1 Oregon 353; Low v. Marshall, 17 Maine 232; Leard v. Smith, 44 N. Y. 618; Irvin v. Bleakley, 7 Pa. St. 24.] It is not the law that a right of action accrued on the coa[339] tract in favor of Stephenson from the mere fact that the defendant tendered no sufficient deed, if Stephenson never offered to pay the purchase money. How did the defendant default under those circumstances? In a case like this the law requires the party seeking relief, whether vendor or vendee, to show he did his duty. If the Barada-Ghio Real Estate Company had sued Stephenson, it would have been required to prove it had offered to convey a clear title. [Hauffman v. Hunter, 3 Green (N. J.) 83.] The plaintiff was equally bound to prove Stephenson offered to pay the purchase money on receipt or tender of a deed conveying a clear title. [Cases supra.] Now Hall’s testimony conduced to show such an offer was made on behalf of Stephenson, but Hruska’s testimony was to the contrary. In our opinion Stephenson was entitled to demand a clear title and the defendant had no right to insist on full payment before it discharged the incumbrances. [Webster v. Trust Co., 145 N. Y. 275.] But either parly might waive the right enjoyed as to these details of performance. [Id.] Stephenson, or his agent Hall, was not bound to insist on the title being clear before payment was made; and if, as Hruska swore, Hail raised no objection to paying the money on that score, but Avas willing to pay, if he could procure it, and let the incumbrances be. lifted after-wards, he did Avaive the point. Neither was Hruska bound to insist on a tender of cash by Hall; but might-content himself Avith an offer to pay without a tender of the money. And if, as Hall SAVore, Hruska raised no objection to the offer to pay on the score that the money Avas not tendered, but insisted on Stephenson’s supposed duty to pay before the deeds of trust were lifted, Hall’s offer of payment, if he had funds available to make the offer good on receipt of a clear title, was a sufficient performance. Therefore, it will be seen that the questions of a tender of cash by Stephenson, or a clear title by defendant, do not control the case; for there is no unity of evidence to the effect that either party insisted on a tender. [340] Hall swore he insisted on a tender of clear title which Hruska refused until the money was paid; whereas Hruska swore that Hall, instead of challenging the state of the title, declared his inability to raise the money. It follows that one essential fact in the case had to be determined on contradictory evidence; therefore the court’s action in setting aside the verdict as against the weight of the evidence, cannot be reviewed by us.
The learned trial judge thought he erred in the first instruction given on his own motion, because the jury was not required to find Stephenson tendered payment. What we have said above will indicate our opinion on this point. If Stephenson was willing and able to pay the purchase money and offered to do so, and Hruska raised no objection to the offer because the cash was not proffered, the offer itself was performance by Stephenson. [Parker v. Perkins, 8 Cush. 318; Irwin v. Gregory, 13 Gray 215; Smith v. Lewis, 24 Conn. 624; s. c., 26 Conn. 110; Smoot v. Pea, 19 Md. 398.] The case of Pursley v. Good, 94 Mo. App. 382, 68 S. W. 218, is unlike this one; for there was no evidence in it going to show either that Good, who asserted a default by Pursley, had tendered a conveyance to Pursley, or otherwise offered to perform, so as to put the latter in default ; or that Pursley had said or done anything tending to show he waived any legal right he held against Good.
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GOODE, J.
(after stating the facts). — The conflict in the testimony hearing on certain issues is admitted. by counsel for plaintiff; but the position taken is that, notwithstanding this conflict, the verdict was manifestly for the right party, inasmuch as the plaintiff was entitled to a direction for a verdict in his favor. In support of this position it is argued that all the facts essential to plaintiff’s right to recover were admitted. The essential facts are said to be: The execution of the contract, the two payments by plaintiff on the purchase price, the existence of incumbrances on the property exceeding $14,000, until long after the sixty days stipulated for performance had expired, and the assignment of Stephenson’s rights under the contract to the plaintiff. It. is true those facts were admitteid; but in our opinion the proposition that they entitled the plaintiff to a verdict is unsound. It was necessary to show further that Stephenson was ready and Avilling to perform the contract on his part and offered to do so. It is argued for the plaintiff that no offer of the kind was incumbent on Stephenson and those interested with him, for the reason that Stephenson was under no obligation to offer the final payment until the defendant tendered a deed conveying a clear title. That is to say, the defendant was bound to move first in the matter of performance ; and as it never tendered a deed Avliich constituted performance of the condition on which Stephenson had agreed to pay, he was never in default, and, hence, can maintain this action. Stephenson’s agreement to pay and the defendant’s agreement to convey a clear title were concurrent and dependent conditions, and performance, or an offer to perform, by either party was essential to put the other in default and lay the foundation for an action by the party who had performed, for damages or to enforce performance. [Guthrie v. Thompson, 1 Oregon 353; Low v. Marshall, 17 Maine 232; Leard v. Smith, 44 N. Y. 618; Irvin v. Bleakley, 7 Pa. St. 24.] It is not the law that a right of action accrued on the coa[339] tract in favor of Stephenson from the mere fact that the defendant tendered no sufficient deed, if Stephenson never offered to pay the purchase money. How did the defendant default under those circumstances? In a case like this the law requires the party seeking relief, whether vendor or vendee, to show he did his duty. If the Barada-Ghio Real Estate Company had sued Stephenson, it would have been required to prove it had offered to convey a clear title. [Hauffman v. Hunter, 3 Green (N. J.) 83.] The plaintiff was equally bound to prove Stephenson offered to pay the purchase money on receipt or tender of a deed conveying a clear title. [Cases supra.] Now Hall’s testimony conduced to show such an offer was made on behalf of Stephenson, but Hruska’s testimony was to the contrary. In our opinion Stephenson was entitled to demand a clear title and the defendant had no right to insist on full payment before it discharged the incumbrances. [Webster v. Trust Co., 145 N. Y. 275.] But either parly might waive the right enjoyed as to these details of performance. [Id.] Stephenson, or his agent Hall, was not bound to insist on the title being clear before payment was made; and if, as Hruska swore, Hail raised no objection to paying the money on that score, but Avas willing to pay, if he could procure it, and let the incumbrances be. lifted after-wards, he did Avaive the point. Neither was Hruska bound to insist on a tender of cash by Hall; but might-content himself Avith an offer to pay without a tender of the money. And if, as Hall SAVore, Hruska raised no objection to the offer to pay on the score that the money Avas not tendered, but insisted on Stephenson’s supposed duty to pay before the deeds of trust were lifted, Hall’s offer of payment, if he had funds available to make the offer good on receipt of a clear title, was a sufficient performance. Therefore, it will be seen that the questions of a tender of cash by Stephenson, or a clear title by defendant, do not control the case; for there is no unity of evidence to the effect that either party insisted on a tender. [340] Hall swore he insisted on a tender of clear title which Hruska refused until the money was paid; whereas Hruska swore that Hall, instead of challenging the state of the title, declared his inability to raise the money. It follows that one essential fact in the case had to be determined on contradictory evidence; therefore the court’s action in setting aside the verdict as against the weight of the evidence, cannot be reviewed by us.
The learned trial judge thought he erred in the first instruction given on his own motion, because the jury was not required to find Stephenson tendered payment. What we have said above will indicate our opinion on this point. If Stephenson was willing and able to pay the purchase money and offered to do so, and Hruska raised no objection to the offer because the cash was not proffered, the offer itself was performance by Stephenson. [Parker v. Perkins, 8 Cush. 318; Irwin v. Gregory, 13 Gray 215; Smith v. Lewis, 24 Conn. 624; s. c., 26 Conn. 110; Smoot v. Pea, 19 Md. 398.] The case of Pursley v. Good, 94 Mo. App. 382, 68 S. W. 218, is unlike this one; for there was no evidence in it going to show either that Good, who asserted a default by Pursley, had tendered a conveyance to Pursley, or otherwise offered to perform, so as to put the latter in default ; or that Pursley had said or done anything tending to show he waived any legal right he held against Good.
The contract between Stephenson and defendant provided for no forfeiture except of the first payment on the contingency that the second one was not made when due. Time was of the essence of the agreement as to the first two payments; and those having been made promptly, it strikes us that the contract remained open after-wards for performance by both parties. Its optional feature was eliminated by the second payment, and it then stood as a binding obligation of sale and purchase. Now the provision regarding forfeiture for default in meeting the second payment, argues for the interpreta[341] tion that time was not of the essence of the stipulation for further performance and that no forfeiture for delay therein was intended. If this is correct, then after the contract had lost its optional character, defendant was not entitled to keep the payments in case of a breach by Stephenson, but only to be made whole for the damages sustained by the breach. It had no right to retain the payments on the theory that they were forfeited, but might have had the right to retain them to cover its loss on account of a breach; that is to say, if the loss was as great in amount as the payments received. It does not clearly appear from Hruska’s testimony that defendant ever regarded the agreement as having been either breached or abandoned by Stephenson or hisassignees.lt strikes us that the posture of affairs between the parties was such that Stephenson, or the defendant, might have demanded performance at any time; and that if the defendant allowed the property to pass from its control by sale,- so that no title could be conveyed pursuant to the agreement with Stephenson, it would have no right to retain the purchase money as a forfeiture. Some of Hruska’s statements give the impression that the property is yet in the defendant’s control and can be conveyed if desired. If this is so, the defendant, if blameless, might enforce performance or get a decree cutting off the right of plaintiff and his assignors. These points have not been discussed, nor are we undertaking to decide them. In truth this is not an action, to recover the money paid on the ground of an abandonment of the contract by defendant or its inability to perform, but is an action on the contract for refusal to perform. What we say is that we are unable, at present, to perceive any theory on which the defendant, if not itself able to carry out the agreement, has the right to forfeit the purchase money, or to hold more of it against an appropriate action than is sufficient to reimburse defendant for any loss it may have sustained by a breach of the contract by Stephenson.
[342] The judgment is affirmed and the cause remanded.
All concur.