#### Patrick Moran, Appellee, v. Florence A. Grim, Appellant.

Gen. No. 6,086.

(Not to be reported in full.)

Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.

Heard in this court at the April term, 1915.

Reversed and remanded.

Opinion filed October 20, 1915.

Statement of the Case.

Action by Patrick Moran, plaintiff, against Florence A. Grim, defendant, to recover for the breach of a real estate contract. From a verdict and judgment for plaintiff for $105, defendant appeals.

By the contract which was in writing, plaintiff was to convey to defendant by warranty deed, free of all *186incumbrance, certain real estate and was to pay her $250, and defendant was to convey to plaintiff by warranty deed, free of all incumbrance, certain other real estate, and the contract was to be carried into effect on February 15, 1914. Plaintiff brought suit before that date. It did not appear that he tendered to defendant a warranty deed or $250, nor that he had that sum ready to pay to her.

Abstract of the Decision.

1. Contracts, § 339 * —when action for breach of contract for exchange of realty not maintainable. An action cannot be maintained before time for plaintiff’s performance to recover for the breach of a contract to exchange realty, where it does not appear that plaintiff offered or was ready to perform his part nor that he was excused from performance by the language and conduct of the other party acting personally or through an agent.

2. Contracts, § 390 * —when excuse from performance a question for jury. In an action for the breach of a contract for the exchange of realty, brought before the time plaintiff was to have performed his part of the contract, where there was no proof of any tender or readiness of performance by plaintiff, the question whether performance by him had been excused by defendant’s language or conduct is for the jury.

3. Damages, § 56 * —what proper measure of damages in action for breach of contract. In an action to recover for the breach of a contract for the exchange of realty, the measure of damages is the excess in value, at the time of the breach, of the property which plaintiff was to receive over that which he was to convey.

4. Damages, § 200 * —when instruction as to measure of damages for breach improper. In an action to recover for the breach of a contract for the exchange of realty, where there is no proof from which the jury can estimate the excess in value, at the time of the breach, of the property which plaintiff was to receive over the *187property which he was to convey, it is error to authorize the jury, if they find for plaintiff, to assess such damages as they believe from the evidence plaintiff had sustained.

*186John Gr. Petteys, for appellant.

Frank L. Flood, for appellee.

*

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

Mr. Presiding Justice Dibell

delivered the opinion of the court.