Action for unlawful holding over after rent due; judgment for plaintiffs; motion for new trial denied, and defendant appeals.
There are two, and only two, material questions in this case.
1. What was the character of defendant’s holding of the demanded premises subsequent to June 21, 1887? Did she hold as vendee in possession under contract of sale, or as lessee under a verbal lease?
2. What extension of time did plaintiffs give her to make payment of the agreed price of the premises, — one year from June 21, 1887, as she claims, or one month, as they claim?
There is a substantial conflict in the testimony on both points; and'the findings of the superior court, which are against the defendant, cannot be set aside.
Time was expressly made of the essence of the contract of sale, and the time of payment expired June 21, 1887. We must accept the finding of the superior court, that it was extended only until July 21st,—one month. When the deed was tendered, August 15, 1887, and pay*561inent demanded, the defendant distinctly refused to pay before June 21, 1888, and she persisted in this attitude when the offer of the deed was renewed on the trial, — at least, she did not at that time offer or agree to accept it and make payment.
This refusal to perform, upon her part, put an end to the contract of sale, at the option of the plaintiffs, and left them at liberty to pursue their remedy as landlords.
Judgment and order affirmed.
Paterson, J., and Fox, J., concurred.