Maria J. Myers, Executrix, etc., Appellant, v. Juan C. De Mier

Maria J. Myers, Executrix, etc., Appellant, v. Juan C. De Mier. (Argued February 25, 1873; decided April 1, 1873.) Where time is not of the essence of a contract, in order to forfeit the rights of one of the parties thereunder, notice must be given him. by the other requiring performance within some reasonable time therein specified, and that, in case of default, his rights will be deemed abandoned- Plaintiff’s testator, II., contracted to sell to defendant his interest in certain real estate and personal property the deed to be delivered the first of February thereafter; or, in case M. had not then returned from a contemplated, journey, as soon as it might be done after such return, defendant to pay $4,000 down, $6,000 on or before the delivery of the deed, and to secure the balance by bond and mortgage bearing interest from the date of the contract. Defendant paid the $6,000 prior to February first. On that day M. tendered a deed, to which, after examination by his attorney, defendant objected. M. executed and tendered another onthe twenty-fourth of February, which was also objected to. On the tenth of March, M. wrote defendant that, unless the deed last offered, was accepted, he should proceed to enforce the contract, and directly thereafter commenced this action, seeking ■ to restrain - defendant from selling the personal property and to require an account therefor. Defendant, before answer, and on the fourth of April, offered to accept the last deed, and ténder'ed a bond and mortgage as specified in the contract.1 ’ M.: refused to deliver the deed or accept the bond and mortgage. Defendant then served his answer, setting up the facts as a counter-claim, and asking for specific performance. M. thereupon served. an amended complaint, claiming to rescind, the contract on the ground of defendant’s failure to perform. Defendant answered, tendering and asking for specific performance. After, issue, "M. died; leaving a will devising and bequeathing all his property to plaintiff, his wife. After trial, upon the settlement of the case, plaintiff claimed her dower in the premises. Held, that time was not of. the essence of •the contract, and that defendant could not be barred of ■ his rights - without notice requiring performance in a specified, reasonable time, or, in default; that his rights should be deemed abandoned ; and no such notice having been served, he was entitled to a specific performance. Also held, that plaintiff was not entitled to dower. First, because no such claim; was made upon the trial; and if made then, the court, in allowing it; would doubtless have deducted its . value" from" the unpaid purchase-money; second, plaintiff being’-.sole1 devisee and legatee, the allowance could have been of no possible benefit D. Pratt for the appellant. Charles Tracy for the respondent. [MAJORITY — Grover, J.,] Grover, J., reads opinion for affirmance. All concur. Judgment affirmed.