Page:Federal Reporter, 1st Series, Volume 8.djvu/870

 856 FEDERAL REPORTER. �was present expecting paument, and when Waas thought his daugh- ters would execute the deed for streets, etc., to himself, the parties separated to finish the business, and Waas and Mrs. Meader went to Jackson's office to have him draw a satisfaction piece and quitclaim deed. When the interview at the office of Waas closed, he said he would notify the complainant to go to the court-house when he was ready, The complainant was not notifled, and no other interview took place until some time in March, when Mrs. Meader commenced a-foreclosure suit, making the complainant a party; and about that time John Waas testifies, and it is not denied by any one, that he went to complainant, and, to use his own language : "I told him (complainant) I had offered him a clear warranty deed for the south half of lot i, and he had refused to accept it, and the time had passed for the redemption of the land and I rescinded the contract on authority from my wife. " �On April lOth and 22d complainant made a tender of the money and demanded a warranty deed, and stated that he waived his right to streets. The tender included interest on the amount due from February 6, 1880, less the $100 paid down on the execution of the contract. The defendants refused to perform, and the suit was instituted in the district court of Hennepin county and removed to this court. �The suit brought by Mrs. Meader resulted in a decree of fore- closure, and the complainant was purehaser at the sale. �CONCLUSIONS. �1. Time is not the essence of this contract. The covenants are mutual and concurrent, and Wass and wife could not claim payment without a tender of performance. The agreement to procure a deed for streets, so that the complainant might have right of way through land owned by the daughters, does not prevent a court of equity from enforcing a performance of the substantial part of the contract, which defendants are able to perform. The substantial part of the contract was the bargain and sale of the land and assignment of a part of the Hans Johnson lease; and if any damage resulted from the fact that the defendants could not procure a deed for right of way, etc., from their daughters, there is ample power in a court of equity to do justice by way of decreeing compensation to the complainant. �2. There was ho sufficient tender of performance by defendants which would require the complainant to fulfll on his part. They had agreed to give a warranty deed of the land and an assignment ��� �