Opinion of the Court-Morgan, J., Dissenting.

show that defendant was personally responsible to the plaintiff for his wages sued for in this action.

The judgment is therefore reversed, a new trial granted and the cause remanded for further proceedings in accordance with the views expressed in this opinion.

Costs awarded to the appellant.

Budge, J., concurs.

MORGAN, J., Dissenting.-The evidence in this case is conflicting as to the ownership of the horses and as to whether Smythe acted in his own proper person in employing respondent, or whether he acted as agent for appellant. No rule is better settled in this state than that this court will not disturb the verdict of a jury or the judgment of a trial court because of conflict in the evidence when there is sufficient proof, if uncontradicted, to sustain it. Among the recent cases so holding is Montgomery v. Gray (on rehearing), 26 Ida. 583, 144 Pac. 646, Graham v. Coeur d'Alene & St. Joe Transp. Co., 27 Ida. 454, 149 Pac. 509, Bower v. Moorman, 27 Ida. 162, 147 Pac. 496, Darry v. Cox, 28 Ida. 519, 155 Pac. 660, Jensen v. Bumgarner, 28 Ida. 706, 156 Pac. 114, and John V. Farwell Co. v. Craney, ante, p. 82, 157 Pac. 382 (register No. 2733). The reason for this rule is that the jury is the exclusive judge of the credibility of the witnesses and of the weight and sufficiency of the evidence. It was within the province of the jury to, and it apparently did, discredit the testimony adduced by appellant to sustain his contention, and it is not for this court to say that it erred in returning the verdict it arrived at from the conflicting evidence before it.

I am convinced that had there been no evidence offered conflicting with that introduced by respondent to show that appellant owned the horses and that Smythe acted as his agent, it would have been deemed to be sufficient to sustain the verdict in respondent's favor. For this reason I am of the opinion the judgment should be affirmed.

Points Decided.

(May 3, 1916.)

W. W. PAPESH, Appellant, v. W. B. WAGNON, Respondent.

[157 Pac. 775.]

CONTRACT FOR SALE OF LAND-TIME ESSENCE OF CONTRACT-CONDITIONS PRECEDENT NOTICE OF FORFEITURE ENCUMBRANCE ON LAND AT TIME OF FINAL PAYMENT-WAIVER-TENDER TO ESCROW HOLDERRESCISSION BY VENDOR.

1. In the case of a contract for the sale of land upon instalments, where time is made the essence of the contract and it is provided that upon default by the vendee in any of the conditions to be performed by him the contract shall become void and he shall forfeit his rights thereunder, and any payments that may have been made to the vendor shall be deemed liquidated damages, and it is further provided that upon performance of all the conditions of the contract by vendee, vendor shall execute and deliver a good and sufficient warranty deed to vendee, and under such contract a deed to the land in question is placed in escrow, and the vendee fails to make the final payment on said contract at the time said payment becomes due, and the vendor declares no forfeiture, but about six months thereafter submits to vendee a statement of account and about a year thereafter withdraws his deed from escrow, and subsequently the vendee brings suit against the vendor to recover all payments made on the contract, alleging that vendor was not in a position at the time the last payment became due to give good title to the land, for the reason that said land was encumbered by an outstanding mortgage, held that vendee was not in a position to demand a deed until he had complied with the conditions precedent of his contract, and in the absence of acts or conduct on the part of vendor such as would amount to a waiver of vendee's default, all payments theretofore made according to the terms of the contract became forfeited to the vendor under such contract.

2. In the case of a contract for the sale of land, where time is made the essence of the contract and it is stipulated that in the

Upon the question of excuse for not performing conditions precedent to rescission or abandonment of contract for other party's default, see note in 30 L. R. A. 40. As to effect of making time of the essence of contract by demand or notice, see note in 15 L. R. A. 737. And for cases on the question of delivery of deed in escrow as change of title or interest, see note in 38 L. R. A., N. S., 142.

Points Decided.

event of default by the vendee in performing any of the conditions of the contract the contract shall become void, and such default on the part of the vendee occurs, the vendor is not required to serve notice upon the vendee of his intention to declare a forfeiture.

3. Where a vendee fails to perform an obligation that is a condition precedent in a contract for the purchase of land, the vendor may rescind without tendering a deed; and if the deed has been placed in escrow pending a performance of the conditions, tender of the same need not be made, since the vendee knows where it is and how he can get it.

4. A statement of account under a contract for the purchase of land submitted by vendor to vendee after the latter has defaulted in the final payment under the contract, in which statement such final payment is offset by a mortgage on the land owing by vendor, with the amount of which mortgage vendee is credited in such statement, is not a waiver or breach of the conditions of the contract on the part of the vendor.

5. Under a contract for the sale of land where time is made the essence of the contract, covenants on the part of the vendee are con ditions precedent to the execution and delivery of a deed from vendor; and where the land in question is encumbered by a mortgage, it is the duty of the vendor, after the performance of the precedent conditions, to forthwith execute and deliver such deed to the vendee and to procure a release of the mortgage on the land. The circumstance of an outstanding mortgage lien in an amount equal to the final payment under the contract would furnish no legal excuse for the failure of the vendee to pay or tender the amount due upon the contract, in the absence of an allegation that vendor was unable or unwilling to give an unencumbered title to the land when vendee had complied with his part of the contract.

6. The tender by vendee to an escrow holder of the amount due under a contract for the purchase of land after the time for making such payment has expired and at a time when, according to the provisions of the contract, vendee has forfeited his right to a performance on the part of the vendor, and vendor has accordingly withdrawn a deed to the land from escrow, will not avail to restore the rights of the vendee under such contract.

[As to when time is or may become of the essence of contracts for the sale of land, see note in 104 Am. St. 265.]

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.

Action to rescind an executory contract and to recover money paid thereunder. Judgment for defendant. Affirmed.

Argument for Appellant.

Reed & Boughton, for Appellant.

The law is clear that the covenant by the vendor in an executory contract of sale, to give a "good and sufficient warranty deed," is in the eyes of the law a contract to give a marketable title free from encumbrance. (39 Cyc., pp. 1445 and 1446, with many authorities cited.) It follows that if the covenant on the part of the vendor to execute a "good and sufficient warranty deed" was concurrent with the obligation of the vendee to pay the last instalment of the purchase price, that the vendor was in no condition to declare the contract forfeited, or claim the balance due until he had cleared title and thus put himself in a position to perform. (Gibson v. Rouse, 81 Wash. 102, 142 Pac. 464; Boyd v. Boley, 25 Ida. 584, 139 Pac. 139; Kessler v. Pruitt, 14 Ida. 175, 93 Pac. 965; Bank of Columbia v. Hagner, 1 Pet. (26 U. S.) 455, 7 L. ed. 219.)

If the covenant to convey is to convey upon payment of the last instalment, the covenants to pay the prior instalments are independent of the covenant to convey, but the payment of the last instalment and the delivery of the deed are dependent and concurrent acts. (Kessler v. Pruitt, supra; Christy v. Baiocchi, 53 Wash. 644, 102 Pac. 752; Bean v. Atwater, 4 Conn. 3, 10 Am. Dec. 91; Sheeren v. Moses, 84 Ill. 448; Duncan v. Charles, 5 Ill. (4 Scam.) 561; Reard v. Ephrata Orchard Homes Co., 78 Wash. 180, 138 Pac. 678; Harris v. Reed, 21 Ida. 364, 365, 121 Pac. 780.)

A party to an agreement for the sale of real estate is not in a position to declare a forfeiture of the contract while he is not in a position to make a marketable title to the real estate in question. (Sievers v. Brown, 34 Or. 454, 56 Pac. 171, 45 L. R. A. 642; Higinbotham v. Frock, 48 Or. 129, 120 Am. St. 796, 83 Pac. 536; Wheeling Creek Gas, Coal etc. Co. v. Elder, 54 W. Va. 335, 46 S. E. 357; Cabrera v. Payne, 10 Cal. App. 675, 103 Pac. 176.)

The taking of interest on the delinquent purchase price amounts to an unequivocal recognition of the contract, and constitutes a waiver of the time clause. (Merriam v. Good

Argument for Respondent.

lett, 36 Neb. 384, 54 N. W. 686; Robinson v. Trufant, 97 Mich. 410, 56 N. W. 769; Smith v. Northern Pac. R. Co., 22 Wash. 500, 509, 61 Pac. 255.)

"When it is apparent that tender and demand will be unavailable, as where the vendor gives notice of his intention not to perform, absolutely refuses to perform, puts himself in a position in which performance is impossible, offers a defective title, or is unable to perform, a formal tender and offer of payment and demand of deed by the purchaser is not necessary to entitle him to recover back what he has paid under the executory contract, as the law does not require idle ceremonies." (39 Cyc. 2048; Merrill v. Merrill, 102 Cal. 317, 36 Pac. 675; Joyce v. Shafer, 97 Cal. 335, 32 Pac. 320; Cabrera v. Payne, supra; Walters v. Mitchell, 6 Cal. App. 410, 92 Pac. 315.)

Featherstone & Fox, for Respondent.

There is no provision in the contract that left the termination thereof or the forfeiture thereunder optional with the vendor, so that no declaration of forfeiture or notice to the vendee were necessary, but by the clear provision of the contract the default of the vendee rendered the contract void and worked a forfeiture of the money paid. (Kessler v. Pruitt, 14 Ida. 175, 93 Pac. 965; Prairie Development Co. v. Leiberg, 15 Ida. 379, 98 Pac. 616; Rischar v. Shields, 26 Ida. 616, 145 Pac. 294.)

The deed to the property as alleged by appellant was in escrow at the bank where the final payment was to be made at the time the payment became due. That was a sufficient tender if any tender by respondent was necessary. (39 Cyc. 1377.)

Appellant seeks to recover the forfeiture caused solely by his own wilful default and abandonment of the contract. He is in no position to demand a repayment or to ask the aid of the court to recover the forfeiture. (39 Cyc. 2002–2025.)

The mortgage was not such an encumbrance as would entitle plaintiff to disregard his contract entirely without even making an objection thereto or a demand upon defendant to