#### Frank Benko, Defendant in Error, v. Kate Lenard, Plaintiff in Error.

Gen. No. 20,613.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding. Heard in this court at the October term, 1914.

Affirmed.

Opinion filed March 8, 1915.

*601Statement of the Case.

Action by Frank Benko, plaintiff, against Kate Lenard, defendant, to recover two hundred dollars paid by plaintiff to defendant as earnest money upon a contract for the purchase and sale of real estate. The contract -is in part as follows:

“THIS' MEMORANDUM WITNESSETH, That Kate Lenard hereby .agrees to sell, and Frank Benko agrees to purchase at the price of Eighteen Thousand Dollars, the following described real estate, situated in Cook County, Illinois.

(Here is given description of the property.)

“Said purchaser, Frank Benko, has paid Two Hundred ($200.00) Dollars as earnest money, to be applied on said purchase when consummated, and agrees to pay the sum of Seventeen Thousand Eight Hundred ($17,800.00) Dollars, sixty days after the date hereof, provided that the said Kate Lenard at that time delivers to him a good and sufficient Warranty Deed with release of dower, conveying to said purchaser a good title to said premises, and upon the further condition that the abstract of title to said premises shows a good title.

“A complete Abstract of Title or merchantable copy to be furnished within a reasonable time, with a continuation thereof brought down to this date. In case the title upon examination is found materially defective within ten days after said Abstract is furnished, then unless the material defects be cured within a reasonable time after written notice thereof, the said earnest money should be refunded to the said Frank Benko, and in addition to said earnest money the said Kate Lenard shall pay to him, the amount of his expenditures and loss that he has sustained by reason of this contract.

“Should Said purchaser fail to perform this contract promptly on his part, at the time and in the manner herein specified, the earnest money paid as above shall, at the option of the vendor, be forfeited as liquidated damages, including commissions payable by vendor, and this contract shall be and become null and void. *602Time is of the essence of this contract, and of all the conditions thereof.

Abstract of the Decision.

1. Principar and agent, § 8 * —when evidence sufficient to establish relation. Eviáence examineá in action to recover earnest money p'aiá upon a contract for the purchase aná sale of real estate aná held to warrant a fináing that the attorney árafting the contract was acting as áefenáant’s agent.

2. Vendos and purchaser, ' § 121*—when delivery to vendor's agent not delivery to purchaser. Delivery of an abstract of title by the venáor of the laná to such venáor’s agent áoes not constitute a áelivery to the purchaser;

3. Vendor and purchaser, | 121*—when tender of warranty deed does not cure default in giving abstract of title. Where a contract for the purchase aná sale of realty proviáes that an ab*603struct of title shall be delivered to the purchaser in a reasonable time and that it shall show a good title and that the vendor shall deliver a warranty deed sixty days after the date of the contract, a tender of the deed after the expiration of the sixty-day period and while the vendor is in default as to the abstract is insufficient where the purchaser demanded a return of the earnest money and showed his intention to rescind.

*602“IN TESTIMONY WHEREOF, said parties hereto set their hands this 8th day of June, A. D. 1912.

Kate Lenard,

Frank Benko.”

The evidence showed that defendant brought the abstract to the attorney in whose office the contract was drawn and that it remained there until after the expiration of the sixty-day period. After the period expired, defendant tendered a warranty deed to plaintiff who declined to receive it and demanded the return of the earnest money.

Judgment for plaintiff for two hundred dollars was rendered and to reverse this judgment, defendant sues out this writ of error.

Burres & St. George, for plaintiff in error; Maximilian J. St. George, of counsel.

Thomas J. Peden and Roy C. Merrick, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice McSurely

delivered the opinion of the court.