On Petition eor Rehearing.
[Decided April 24, 1911.]
Per Curiam.A petition for rehearing has been filed herein, in which it is contended that the court has wrongfully applied the former decisions of this court, in that, in this case, all of the payments were not due on the contract at the time the first notice of forfeiture was given, and hence, there was no duty incumbent on Meisenheimer to tender a deed.
We cannot agree with this contention. Before taking up that feature of the case, we held that because of the personal covenants of Meisenheimer, the notice of forfeiture given by Maud Motley Meisenheimer was ineffectual to work a forfeiture of the contract. Our decision might have been made to rest upon this ground alone, but because we found the whole of the purchase price to be due, we went further and put our decision upon the additional ground, that where the covenants of an executory contract were mutual and dependent, that a forfeiture could not be declared without a tender of the deed. It is said:
“It is unquestionably the law that if all the payments are due, the vendor must tender performance before he can put the vendee in default. If all the payments had been due we certainly would have tendered a deed with the declaration of forfeiture.
“The last two payments being not yet due, that rule does not apply here. Until November 1st, 1909, total payment could not be required nor was conveyance required.
“The mailing of intermediate payments was not concurrent with making the deed.”
The record in this case shows that one Lambert, acting for Gottschalk, and after the ineffectual declaration of forfeiture had been made, tendered the sum of $4,344.83 and demanded *307a deed. He further testifies that no objection was made to the amount of the tender, that it was refused solely because it came too late. This, .under a well settled rule of law, lyould estop Meisenheimer from claiming that the amount was insufficient. At the time the contract was executed, there was a balance due of $2,985. Tender was made five years, eight months and ten days after the execution of the contract. The interest for that time at eight per cent amounts to $1,359.83, or a total of $4,344.83. Our remark in the former opinion, “His declaration of forfeiture is based upon the default of the last payment as well as the first, the whole sum was due and a deed forthcoming,” may be misleading; but when considered in connection with our holding that Maud Motley Meisenheimer could not forfeit the contract, or relieve Meisenheimer of his covenants, it seems clear to us Gottschalk had the right to tender all payments “on or before” the due date, and when he did make the tender, the full amount became due ipso facto. He thus put the burden on Meisenheimer, who could not escape liability by reference to the act of Maud Motley Meisenheimer, who admittedly was in no position to carry out the contract.
Meisenheimer now relies upon the first declaration of forfeiture, but it is evident that when making up his case he did not rely upon that alone. It was in the alternative; it declared that if payment was not made as demanded, “Said contract will be forfeited and declared at an end.” All notes were retained, and no attempt was made to assert a forfeiture by positive declaration or return of the notes given to evidence the deferred payments until October 12, 1908, two days after Gottschalk had tendered the full amount due and was entitled to his deed. Whether an alternative declaration of forfeiture, under a contract where notes collateral thereto had been executed, would forfeit the rights of the vendee until the notes had been tendered back was not decided by us, nor do we now pass upon that question. There are cases holding that it cannot be done. Comstock v. Brosseau, 65 Ill. *30839. It is enough when it appears that no notice sufficient to satisfy the law had been given at the time the tender was made. By the terms of the contract, a tender being made before any legal forfeiture occurred, the whole purchase price became due and Gottschalk was entitled to his deed. Our decision is that there was no forfeiture; that a tender was made in time; that a deed was forthcoming; that Gottschalk was not bound to pay one who could not perform; that he might have' had specific performance; and waiving that remedy, he could recover his damages. Rehearing denied.