prised the defendant should have given plaintiff notice rescinding the contract. His testimony continues: "A. As I said before, Mr. Parr seemed to me surprised that the company demanded the rescinding of the contract, and said that he was satisfied that they would be willing to accept a portion of the balance of the principal. "Q. What did you answer? A. I told him that, since they had placed it in the hands of their attorney, I was afraid to make a partial payment; that I thought it would be better to pay it all." From this testimony it appears that plaintiff abandoned negotiations for an extension of time on August 17th, and announced his purpose to pay the debt in full. Parr places his knowledge of plaintiff's change of purpose three days later. He testifies that about August 20th he had a conversation with M. A. Moody, as follows: "He told me that he had decided to pay all cash. Said he would send me a draft the next day for the full amount, and wanted to know if I made the deeds, or if it was necessary to send them to San Francisco. He said, 'You go ahead and have the deed made out, and I will send you the draft to-morrow'-that is, the next day." The draft was not sent, but on the following day, August 21st, Moody called up Parr on the telephone and said that he had not sent the draft, but requested Parr to forward the deed, make it out and forward it to San Francisco for execution, and send it to the First National Bank of the Dalles, or any other place that was satisfactory to Parr, and he would pay over the money. The deed was to be made to E. E. Ferguson. On the same day plaintiff by his agent wrote and sent to Parr the following letter: "Z. F. Moody, General Commission Merchant, "The Dalles, Or., Aug. 21, 1906. "Geo. Parr, Agent E. O. L. Co., Moro, Or.-Dear Sir: Confirming our conversation by telephone to-day we will be ready to pay the balance due on the contract with your company made January 2, 1902, as soon as you can execute and deliver the deeds for the land according to the terms of the contract. Please make the deeds to E. E. Ferguson and notify me by return mail whether you prefer to receive the money and deliver the deeds here at The Dalles or at Moro. Yours truly, Z. F. Moody, pr. M. A. Μ." This was the last day in which plaintiff had the right under the terms of the defendant's demand to pay the amount due on the contract, and obtain from the defendant a deed for the premises. [1] The payment of the principal, sums due on the contract, and interest, and the strict performance by the plaintiff of all the covenants and agreements contained in the contract to be by the plaintiff kept and performed, were made conditions precedent to the said covenants, and time was declared to be the essence of the contract. * "Where a contract is thus conditional-that is, where it rests upon a condition precedent-until the performance of the condition it cannot be enforced, because, until that time, there is not true contract. * * The fact that a contract depends upon a condition precedent, which has not yet been performed, is always a complete defense to a suit for its specific enforcement. Equity, therefore, never relieves against the nonperformance or breach of conditions precedent, since no estate vests, or right accrues, as long as the condition thus remains unperformed." Pomeroy on Contracts, § 334. .. The payment of the amount due on the contract in this case was therefore a prerequisite to the vesting of any right in the plaintiff to a conveyance of the land described in the contract. No such payment was made, but it is claimed that a tender of payment was made by the plaintiff which was equivalent to a payment. A tender of payment to be the equivalent of a payment must be: [2] 1. Unconditional. In Loud v. Pomona Land & Water Co., 153 U. S. 564, 577, 14 Sup. Ct. 928, 38 L. Ed. 822, the Supreme Court of the United States had before it the question of whether the covenants of certain contracts for the sale of land, payable in installments, were dependent and concurrent, or independent, and the payment of the purchase price a condition precedent to the covenant of conveyance on the part of the land company that it would convey. The court held that, if the terms and provisions of the contracts were to be understood in their plain and obvious meaning, they clearly expressed the intention of the parties to be that the purchaser should first pay the purchase price of the lands contracted for before he was entitled to demand a conveyance therefor; that it was clear that the purchaser could not have legally demanded from the land company a deed or conveyance for the lands until after the purchase money had been fully paid; that the payment or tender of payment of the purchase price for the land was a condition precedent to the right to the conveyance. In support of this doctrine the court cites numerous authorities both in England and in this country. In Kelsey v. Crowther, 162 U. S. 404, 408, 16 Sup. Ct. 808, 810 (40 L. Ed. 1017), the action was for the specific performance of a contract for the sale and purchase of land. The plaintiff had made a payment on the purchase price, and by a covenant in the agreement of sale had 30 days for the examination of a title. If the title was approved, defendant contracted that he would, at once, on payment of the balance of the agreed purchase money, execute and deliver a full and perfect warranty deed conveying to the purchasers the entire title to the premises. Defendant also agreed to at once furnish an abstract of title to the premises. Defendant failed to furnish the abstract of title; but, notwithstanding this fact, the plaintiff tendered to defendant the balance of the purchase price and demanded the conveyance of the property. The tender was, however, made on the next day after the period of 30 days had expired. The trial court entered a decree in favor of the defendant, denying the specific performance of the contract. The Supreme Court of the United States approved this decree, saying: "His (defendant's) failure to furnish the abstract might have justified the complainants in declaring themselves off from the contract, and might have formed a successful defense to an action for damages brought by Crowther, (defendant). But if they (complainants) wished to specifically enforce the contract, it was necessary for the complainants themselves to tender performance. To entitle themselves to a decree for a specific performance of a contract to sell land it has always been held necessary that the purchasers should tender the purchase money." 198 F.-2 In Kentucky Distilleries & Warehouse Co. v. Warwick, 109 Fed. 280, 283, 48 C. C. A. 363, the Circuit Court of Appeals for the Sixth Circuit, applying this doctrine in a similar case, held that a purchaser of real estate who is required by the contract to deposit the price with a third party by a day certain-time being of the essence of the contract-is bound to pay in or tender the money within the time stated to entitle him to enforce specific performance, notwithstanding the failure of the vendor to furnish an abstract of title within the time required by the contract. In Englander v. Rogers, 41 Cal. 420, there was an action for the recovery of a deposit on the purchase price of real estate. The covenants of the vendor and vendee were mutual and dependent, and it was held that neither could put the other in default except by actually tendering a performance on his own part. The court says: "To entitle the plaintiff to maintain the action on the contract set out in the complaint, he should have averred a tender of the unpaid portion of the purchase money, or some sufficient excuse for the omission to tender it. The only allegation of the complaint on this point is that the plaintiff 'has been ready and willing during all the time aforesaid, and has offered to accept and take the conveyance, pursuant to said agreement, and to pay the balance of said purchase money.' It is not an averment that he tendered the purchase money. To constitute a valid tender in such a case, the party must have the money at hand and immediately under his control, and must then and there not only be ready and willing but produce and offer to pay it to the other party on the performance by him of the requisite condition." In Powell v. D. S., etc., R. R. Co., 12 Or. 488, 490, 8 Pac. 544, 546, it is said: "A mere readiness to perform at such time is not sufficient, but the plaintiff must aver a tender of performance on his part." In McCourt v. Johns, 33 Or. 561, 565, 53 Pac. 601, 602, Judge Wolverton, speaking for the court, said: "The statute has provided that 'an offer in writing to pay a particular sum of money is, if not accepted, equivalent to an actual production and tender of the money'; but it was not the intention of the Legislature thereby to dispense with the readiness and ability on the part of the one making the tender to pay in substantial accord with its terms." In the present case the plaintiff did not tender performance unconditionally but conditionally upon the delivery of a deed of conveyance. The terms of plaintiff's letter of August 21st were: "We will be ready to pay the balance due on the contract with your company made January 2, 1902, as soon as you can execute and deliver the deeds for the land according to the terms of the contract." This was not a notice that the plaintiff was then ready to pay the amount due, but that at a future time, and conditionally upon the delivery of the deed, he would be ready to pay the amount due. [3] 2. A tender of payment, to be the equivalent of an actual production and tender of the money, must be made by one who has the present ability to make the tender good, and the burden of proof is upon the plaintiff to show that he has such ability. The statute of Oregon providing for a tender in writing "does not dispense with the necessity of the parties having the money in fact." Holladay v. Holladay, 13 Or. 523, 537, 11 Pac. 260, 266. The plaintiff in this case was not himself a witness in the case, but it appears from a statement of his bank account that on August 21, 1906, his account in bank was overdrawn in the sum of $1,145.20, and that M. A. Moody, his son, had no account in bank. But the latter testified he had arranged to obtain the money from one Dr. E. E. Ferguson, to whom the title to the land was to be conveyed in the deed. Dr. Ferguson was a witness in the case. He testified that he loaned M. A. Moody $7,000. He gave the money in a check dated October 22, 1906, two months after the tender, and took Moody's note, dated back to August 21, 1906. From this testimony it appears that neither the plaintiff nor his agent had this money in hand on August 21st. They were therefore not able on that date to pay the amount due on this contract; but, even if this money had been available on this date, it would not have been sufficient to pay the amount due on the contract. The amount due on the contract on that date was $7,000 in principal and interest from July 6, 1906, to August 21, 1906, amounting to $76.21, making a total of $7,076.21. There is no testimony in this record that the plaintiff was ready and able to pay the full amount due on the contract at that time. The most that can be said of this evidence is that plaintiff knew where he could secure $7,000; but there is no evidence that the additional sum of $76.21 had been secured, or was ready to be paid with the principal sum. In Lilienthal v. McCormick, 117 Fed. 89, 96, 54 С. С. А. 475, 482, the controversy as in this case arose in Oregon. There was an insufficient tender of payment upon a liability arising upon contract. Upon that subject this court said: "There was no actual tender of any money. It is true that the statute of Oregon provides that an offer to pay a particular sum of money is, if not accepted, equivalent to the actual production and tender of the money; but the Supreme Court of that state have declared that this statute does not dispense with readiness and ability on the part of the person making the offer to pay the money at the time the offer is made. Ladd v. Mason, 10 Or. 308, 314. The evidence does not affirmatively show that the offer made covered the full amount then due. The law is well settled that there can be no valid tender of part of an entire debt. The mistake in the sum offered, if any, must be regarded as the mistake and misfortune of the defendants." [4] 3. A tender of payment, to be the equivalent of an actual production and tender of the money, must be to pay a particular sum of money, which must be a sum that would be in full of all liability on the contract. The statutes of Oregon make "an offer in writing to pay a particular sum," if not accepted, the equivalent to the actual production and tender of the money. The tender in this case on August 21st was first by telephone by M. A. Moody to Parr requesting Parr to make out and forward the deeds to San Francisco for execution, and send it to the First National Bank of The Dalles, or any other place that was satisfactory to Parr, and they would pay the money. The second tender was by letter signed by Z. F. Moody, by M. A. M., dated August 21st, confirming the telephone conversation of that day, and stating that: "We will be ready to pay the balance due on the contract with your company made January 2, 1902, as soon as you can execute and deliver the deeds for the land according to the contract." The tender was not to pay a particular sum of money, but the balance due on the contract. This was not sufficient. The tender is not sufficient unless it is of a specific amount and offered to be paid without annexing any terms or conditions. Pulsifer v. Shepard, 36 Ill. 531, 537. It follows that the tender was not sufficient to meet the terms of defendant's notice of August 11, 1906, and under that notice defendant was entitled to terminate the contract by reason of plaintiff's default in making the payments therein required. On October 22, 1906, the plaintiff by letter addressed to defendant's attorneys, Huntington & Wilson, at The Dalles, Or., referred to their letter of August 11, 1906, demanding payment of $7,000 and interest under the contract of January 2, 1902. Plaintiff refers to his offer verbally and in writing that he was ready to pay the amount due on the contract upon the tender of a deed conveying to him the land referred to therein, and he states that on the 20th inst. he learned for the first time that the defendant had refused to comply with its contract and make the deed called for. The plaintiff thereupon tendered to the defendant company the sum of $7,000 and interest due on payments, $171.15, the sums due on said contract, and demanded from the defendant a warranty deed conveying to him the land described in the contract. The interest here tendered in addition to the principal sum was the interest from July 2 to October 22, 1906, and was in effect an admission that a tender of the interest due on August 21, 1906, of $76.21 was necessary to make good the tender of that date, assuming that the tender was otherwise sufficient. On the same day Huntington & Wilson admitted the tender mentioned in plaintiff's letter, but stated that they were not in a position to deliver such a deed. Thereupon plaintiff brought this action for a specific performance of the contract of January 2, 1902. In plaintiff's amended complaint and defendant's answer and in defendant's cross-bill and plaintiff's answer to the cross-bill the issues are presented substantially as have been stated, and the facts recited are, in substance, the material facts contained in the evidence. The court below held, among other things, that the acceptance by the defendant on August 14 or 15, 1906, of the installment of interest due July 2, 1906, amounting to $280, waived the default in the payment of the principal sum then due, and directed a decree in favor of the plaintiff. Plaintiff's complaint for specific performance is not based upon the theory that defendant had waived plaintiff's default with respect to such payments. The complaint is formed wholly upon the theory that a sufficient tender of payment had been made to meet the terms of defendant's notice of August 11th, and the subsequent action taken by the plaintiff is consistent with that theory, and inconsistent with the theory that plaintiff understood that there was a waiver |