REED, V. C.
Suit by Mame H. Ryon against Mary J. Loveless and others. Decree for complainant.
William M. Clevenger, for complainant. Camerson S. Hinkle, for defendant Loveless. Thomas E. French, for defendant Fishblatt.
REED, V. C. On May 21, 1901, Mary J. Loveless agreed in writing to sell to Mame H. Ryon a lot of land, for which she was to receive $1,500 upon the signing of the agreement and $2,500 on October 1, 1901, when a deed was to be delivered, and a mortgage back for $19,500, the deed to be made on October 1st. Five hundred dollars was then paid by Mrs. Fishbiatt to Mame H. Ryon. It will be observed that both deeds were to be delivered on the same day. On that day Mrs. Fishblatt was not ready or willing to make here payment of $7,000, which she agreed to pay on October 1st, and Mr. Ryon, acting for his wife, Mame H. Ryon, having relied upon the reception of this money to make his payment to Mrs. Loveless of $2,500, failed to do so. On the next day Mrs. Loveless and Mrs. Fishblatt accidentally met at the place arranged for the delivery of the deeds, and there arranged for a sale of the property directly from the former to the tatter, and on October 3d Mrs. Loveless made a deed of said lot to Mrs. Fishblatt for the price of $16,000, being the same price mentioned in the written agreement between Mrs. Loveless and Mrs. Ryon. By this deal Mrs. Loveless really got $1,000 more than she would have received had she made her deed to Mrs. Ryon, for it appears that, while the consideraiton mentioned in the written contract was $16,000, the real consideration was $15,000, and, instead of $1,500 being paid at the time of the execution of that agreement, only $500 was then paid. By the deal Mrs. Fishblatt got the same title which she would have received by the execution of her agreement with Mrs. Ryon for $3,500 less than she would have been compelied to pay Mrs. Ryon. Mrs. Loveless insists that time was made the essence of the contract between herself and Mrs. Ryon by her repeated notices to the agent of Mrs. Ryon, previous to October 1st, that she desired and expected the price to be paid on that day. There is much force in the view, and, so far as her reception of the extra $1,000 from Mrs. Fishblatt more than she would have got from Mrs. Ryon is concerned, I do not think the transaciton should be disturbed. But as between Mrs. Fishblatt and Mrs. Ryon it is apparent that time was not of the essence of the contract. The failure of Mrs. Ryon to get title and transfer it to Mrs. Fishblatt resulted entirely from the unwillingness of Mrs. Fishblatt to perform her part of the contract. It would be inequitable to strip Mrs. Ryon of her rights under the contract with Mrs. Fishblatt under these circumstances. I do not deem it essential that the deed to Mrs. Fishblatt and the mortgage to her should be disturbed. By the execution of these papers she was put in exactly the same posture as she would have been had the existing agreement been executed.
I will advise a decree that she pay to Mrs. Ryon the difference between what she paid to Mrs. Loveless and $19,500.