ON REHEARING.
(Syllabus by the court.) AILSHIE, J.A rehearing was granted in this ease on the question of the liability of appellant Hunt to pay the sum of $439.65, the expenses incurred by the interveners in patenting the mining claims over which this litigation arose. After hearing the case reargued, and a further consideration thereof, we are satisfied that the original opinion should be modified to the extent of holding that the appellant is not liable for this expense of patent proceedings. Conceding that the agreement of February 3, 1905, was continued in force, we are still confronted with this proposition: Under the original contract the $7,000, and also the expense of procuring a patent, was made payable at the same time and place; namely, at the Capital State Bank, Boise, Idaho, on February 3, 1905. Time was made the essence of the agreement. The payment of the $7,000 was not a full payment of the sum due on February 3d, or upon the date to which that payment was extended. On the other hand, a receipt and acceptance by the grantors of the amount paid, and their refusal to return or surrender the same, entitled the appellant Hunt to the deed, and legally relieved him from the payment of any further sum. The interveners had the right to reject the payment until the same was made in full, including both the $7,000 and the expense of patent proceedings. Under the conditions and circumstances surrounding this transaction, we do not think the grantors could accept a partial payment of a sum that it had been agreed should be paid at a given time and place, and still withhold the deed and compel the grantee to pay the balance before receiving the deed. It would be otherwise if these sums constituted separate installments or had been payable at different times. In that case the grantors might receive and accept one payment, and upon failure of the grantee to make any subsequent payment according to the terms of the escrow, declare the forfeiture *600provided by the agreement and still retain the deed. The former opinion of this court will be modified as above indicated, and the cause is hereby remanded to the trial court, with direction that the original decree entered herein be modified in accordance with the views herein expressed, to the effect that the interveners, Godlove and Hindman, be allowed to retain the money deposited by appellant with the respondent bank, and by the bank paid to them, and that the deed for the mining property mentioned and described be delivered to appellant, and that no judgment be entered against appellant for or on account of expenses incurred in procuring patent.
Appellant and interveners will each pay their own costs incurred on this appeal and the respondent bank’s costs will be divided equally between appellant and interveners.
Stockslager, C. J., and Sullivan, J., concur.