The opinion of the court was delivered by
Hoyt, J.The rights of the parties to this action must be determined by the construction to be given to the memorandum in writing made by the defendant to the plaintiff in words and figures as follows:
“ Tacoma, W. T., March 16, 1888. Received of Chas. Langert $5 as part payment for lots No. 1 and 2, in block 1806, conditions as follows: $2,495 to be paid on or about the 20th day of March, 1888, and balance of $1,500 to run on time to suit said C. Langert’s convenience. I also agree to furnish said C. Langert a warranty deed upon the payment of the $2,495, and a clear title. Frank C. Boss. Witness: J. W. Summers.”
Was it simply an option giving the right to the plaintiff •to purchase the property in question, which terminated by the terms of the memorandum itself on the 20th day of March, named therein, or was it a contract for the sale of said property, with dependent conditions making it the duty of either party to tender performance on his part before he could declare the contract forfeited by the other party? The court below evidently found the legal effect of said memorandum was as first stated, as with this construction the evidence might warrant the conclusions of fact and law as found by said court; while the giving to the said contract the other construction would have made the findings of fact by the lower court impossible, upon any fair and reasonable construction of the evidence .introduced upon the trial of the cause.
The material question then is as to the construction of said contract. Plaintiff contends that it is a full contract for the sale of the real estate in question, with all the elements of such contracts, and that as it does not appear *253therefrom that time was of the essence thereof, it entitled the plaintiff to tender performance on his part and demand his deed at any time before he was put in default by a proper tender of performance by defendant. If the first part of plaintiff’s contention is true, we think the latter is also, as we deem the doctrine of equity, that time will not be held to be of the essence of contracts of this nature, unless the intent of the parties thereto that it should be clearly appears therefrom, is too well established by authority to be open to question, or to make it proper to cite authorities in support thereof. Defendant, however, argues that the first part of said contention is not true, for the reason that said memorandum is too indefinite and uncertain to be capable of enforcement in a court of equity.
We agree with the contention of the defendant that the memorandum in question cannot be construed as contended for by plaintiff unless all the terms of the sale reasonably appear therefrom, or may, under the rules applicable to the introduction of oral evidence in aid of such contracts, be made to appear. Investigating the contract in question by the rule thus invoked by the defendant, we see but two' provisions thereof that are at all open to criticism. The first is as to the description of the property. But as the property is described with definiteness, so far as the particular lots and blocks are concerned, and is only faulty in not showing that the block named is in Tacoma, we think the omission is one that could be supplied by oral proof. The other is as to the time of payment of the fifteen hundred dollars that was not to be paid on the delivery of the deed; and as to this, we think oral proof to explain the situation of the contracting parties was admissible, not for the purpose of changing the contract, but to show that there was a mortgage of $1,500 on the property in question, and that the keeping back of the $1,500 was for the purpose of paying off the said mortgage when it became due; and this having been made to appear, the time of pay*254ment of said $1,500 becomes certain, as that is certain which may be made certain, as this could have been by referring to said mortgage, or the record thereof. The contract relied upon by plaintiff entitled him to relief as against the maker of said contract; but the proof showed that it was not in the power of said maker to specifically perform, and, therefore, it was the duty of the court to have given the plaintiff damages for the violation of the contract.
The proof of damages was not satisfactory, and it is doubtful whether thereon a judgment of more than nominal damages should have been rendered. And in view of the unsatisfactory state of the proof upon this question, we think equity demands that there should be a rehearing in the court below.' The cause will, therefore, be remanded, with instructions to set aside the judgment in favor”of defendant, and proceed to a rehearing of the cause against defendant Boss in accordance with this opinion.
Anders, O. J., and Scott, and Stiles, JJ., concur. Dunbar, J., not sitting.