118 Ark. 283 | Ark. | 1915
(after stating the facts). Professor Pomeroy, in discussing the question of specific performance, ■says that the doctrine is fundamental that either of the parties seeking specific performance against the other must show as a condition precedent to his obtaining the remedy that he has ¡done or off ered to do, or is then ready and willing to do, all the essential and material acts required of him by the agreement at the time of commencing suit. Pomeroy’s Equity Jurisprudence, vol. 6, par. 805.
In paragraph 809, following, he .says that where the stipulations are mutual 'and dependent — that is, where the deed is to he delivered upon payment of the price — an actual tender and demand by one party is necessary to put the other in default and to cut off bis right to treat the contract as still subsisting.
According to the testimony of the plaintiff himself, his attorney examined the abstract within a month after this time. So, according to his own statement, the abstract was examined by the middle of January. Still, he failed to make the cash payment of $150 as required by the terms of the contract. The agreement between the parties contemplated that this cash payment should be made in a reasonable time .after the deed was placed in the bank for delivery. The plaintiff failed to make the payment according to the terms of the contract and the defendant upon 'his return to Brinkley on the 20th of February, 1914, again demanded payment of the plaintiff and upon the plaintiff’s failure to pay him .declared the contract rescinded.
The plaintiff failed to perform the conditions imposed upon him Iby the contract, and his failure to do so was a defense to his action for specific per-formánoe. The decree will he affirmed.