#### John H. Gibson, Appellee, v. Frank L. Pitney, Appellant.

Gen. No. 6,109.

(Not to be reported in full.)

Appeal from the City Court of Sterling; the Hon. William A. Blodqett, Judge, presiding. Heard in this court at the April term, 1915.

Certiorari denied by Supreme Court (making opinion final).

Affirmed.

Opinion filed February 8, 1916.

Rehearing denied April 6, 1916.

Statement of the Case.

Action by John H. Gibson, plaintiff, against Frank L. Pitney, defendant, to recover the amount of advance payments upon a contract for the purchase of real estate, after alleged breach by defendant in failing to give possession. From a judgment for plaintiff, defendant appeals.

Defendant entered into a written contract with plaintiff on the 25th of June, 1913, by which the defendant agreed to convey to the plaintiff, by warranty deed, a farm, with a dwelling house thereon, in the county of Whiteside, in consideration of the payment by plaintiff of $18,000 as follows: $200 cash in hand; $1,100 in a note made by J. W. McCready, to be indorsed over to defendant; and the balance of the consideration to be settled by plaintiff at the time of the delivery of the deed to him, on March 1, 1914, by making a further payment of $3,700 and by giving another mortgage on the premises for $4,975, with interest at five per cent, per annum. It was expressly agreed in the contract that defendant would deliver to plaintiff a warranty deed, and give him possession of the premises on March 1, 1914, the premises to be in as good condition as they were at the date of the contract, ordinary wear and tear excepted.

At about the date fixed by the contract for the delivery of the deed and the possession, plaintiff went to *245defendant, who was cashier of the First National Bank at Sterling, Illinois, and demanded of defendant that he carry out the terms of the contract, by delivering to him the deed and the posséssion of the premises r and offered to perform his part of the contract by paying the $3,700 which he had drawn from the Sterling National Bank, and had in his possession for that purpose, ' and by delivering to defendant the notes and mortgage for the settlement of $4,975, as required by the terms of the contract. The evidence showed that defendant was ready to deliver the warranty deed, but practically admitted that he could not carry out his agreement in regard to giving plaintiff possession; and it appeared from his own testimony that he proposed to obtain for plaintiff some other dwelling house to occupy until he could put him in possession of the dwelling house on the premises in question, which offer plaintiff refused to accept; and thereupon the plaintiff declared the contract at an end, and demanded a return of the part of the consideration which had been paid to defendant. Defendant refused, and plaintiff commenced this suit to recover the sum paid.

It was urged by the defendant that under the facts presented in evidence, plaintiff had no right to recover, and that the evidence failed to show that plaintiff tendered .performance on his part, or a willingness and ability to perform, or that the actual performance of this contract, which was mutual in its character, was prevented by the defendant. There was evidence tending to show that the premises were not in as good condition at the time of the making of the contract; thát the dwelling house was quarantined, owing to the presence of smallpox; that water pipes had been frozen and were bursted, and had dampened some of the plastered walls of the house, and had caused some of the plastering to fall; and that because of the bursting of the water pipes there were several feet of water *246in the cellar or basement of the house, which made it very insanitary.

Abstract of the Decision.

1. Vendor and purchaser, § 336 * —when evidence sufficient to show that purchaser offered in good faith and was able to perform contract. In an action by a purchaser of land to recover the amount of payments made upon failure of the vendor to give possession, evidence held sufficient to sustain a finding that the purchaser offered in good faith to perform the contract and was able, at the time, to perform it.

2. Vendor and purchaser, § 96*—when purchaser may rescind contract. The time fixed for performance of a contract is deemed the essence of the contract, and generally, if the seller of real estate is not able and ready to perform his part of the agreement on the day, the purchaser may elect to consider the contract at an end. ”

3. Vendor and purchaser, § 336*—when evidence sufficient to sustain finding that vendor unable to perform contract at date for performance. In an action by the purchaser of real property to recover advance payments upon failure of the vendor to give possession on the date stipulated in the contract, evidence held sufficient to sustain a finding that the vendor was unable to give possession of the premises in good condition on the day stipulated in the con tract.

H. H. Waite and N. Gr. Van Sant, for appellant.

H. C. Ward, for appellee.

*

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

Mr. Justice Niehaus

delivered the opinion of the court.