I concur in reversing the judgment and order appealed from upon the following grounds: The plaintiff and the defendant entered into a written agreement, February 21, 1891, whereby the defendant agreed that “in consideration of, subject to, and upon the full and due performance of the covenants and agreements on the part of the party of the-second part hereinbefore contained,” it would convey to the-plaintiff a certain tract of land; and whereby the plaintiff in consideration of said agreement agreed to pay to the defendant the: sum of six hundred and twenty-five dollars, as follows: one hundred and twenty-five dollars upon the execution and delivery of the agreement, one hundred and twenty-five dollars on or before the twenty-first day of February, 1892, and one hundred and twenty-five dollars on or before the twenty-first day of each succeeding February, the last of said payments to be made on or before the twenty-first day of February, 1895, with interest at the. rate of six per cent, payable annually on the twenty-first day of February of each year on each and all deferred payments. The agreement also contained the following provisions: “It is expressly understood and agreed between the parties hereto that in all matters and things hereunder to be done, and all payments hereunder to be made, time is and shall be of the very essence of this agreement.
“The due performance of all covenants and agreements on the-part of the party of the second part is a condition precedent, whereon depends the performance of the agreements on the-part of the party of the first part. In the event of a failure of" the party of the second part to comply with the covenants and agreements, or any thereof, on his part entered into, the party of the first part shall be released from all obligations in law or in equity to transfer and convey said properties, or any thereof, and the said party of the second part shall forfeit all rights, under this agreement, and all rights to any and all moneys-which he shall theretofore have paid hereunder, as liquidated damages for such default, and not as a penalty.”
*18Other provisions not necessary to he considered herein are also found in the agreement. At the execution of the instrument the plaintiff paid to the defendant the sum of one hundred and twenty-five dollars therein provided for, and on February 21, 1892, paid the further sum of one hundred and twenty-five dollars together with seven dollars and fifty cents for interest. No other installment of the purchase price of the land, or interest thereon, was paid. The plaintiff did not enter into possession of the land. August 9, 1895, the plaintiff tendered to the defendant the full amount then unpaid upon the said agreement, :and demanded a conveyance of the land, tendering at the same time a deed for execution proper in form. The defendant refused to make the deed, and thereupon the plaintiff brought the present action to recover the money which he had paid to the defendant under the provisions of the contract. Judgment was rendered in favor of the plaintiff as prayed for in his complaint, from which the defendant has appealed.
Under the agreement between the plaintiff and the defendant, neither could maintain an action thereon against the other without having performed all of the conditions previously to be performed by him. The plaintiff could not maintain an action for a conveyance of the land until he had paid or tendered the money which he was to pay therefor. By the terms of the agreement he agreed to pay certain installments of the purchase price at designated times, and, although the defendant could have brought an action for each of these installments except the last, at its maturity, without tendering a conveyance, yet, if it failed to bring such action until the maturity of the last installment, it could not maintain an action therefor without a previous tender of the conveyance. (McCroskey v. Ladd, 96 Cal. 455.) Each of the parties to the contract had the right to compel the other to comply with its terms, and any action of this nature would be an action upon the contract, and to enforce it according to its terms. A contract for the purchase and sale of real estate does not differ from any other contract so far as the rights of the parties under its terms are affected. Parties have the right to make their contracts in such form and with such terms as they desire, and it is the function of courts to construe and enforce them as they have been made by the parties. Each has the right *19to an enforcement of the obligations of the other, and neither can free himself from his obligation against the will of the other, so long as the contract remains in force. Whether the action be to enforce the contract, or to recover damages for its breach, it is incumbent upon the plaintiff in such action to show a performance on his part of all the acts required to be performed by him, before he can call upon the other to comply with his part of the agreement, or to respond in damages for a failure so to do. (Easton v. Montgomery, 90 Cal. 307.)
There have been many cases before this court involving the rights of parties to agreements for the sale and purchase of real estate, in which it has been held that after the parties have rescinded the agreement, or mutually agreed to abandon it, the vendee may recover the money which he had paid in part performance of his contract (Drew v. Pedlar, 87 Cal. 443; 22 Am. St. Rep. 257; Phelps v. Brown, 95 Cal. 572; Shively v. Semi-Tropic etc. Co., 99 Cal. 259); but it has never been held that while the contract was insisted upon by the vendor, and he had done no act by which it might be contended that he had abandoned the contract, or was in any respect in default, the vendee could recover the money paid by him in part performance of his contract. On the contrary, it has been held that the vendee, who was himself in default in the payment of a portion of the money, could not against the will of the vendor repudiate the contract and recover the portion already paid. (Bradford v. Parkhurst, 96 Cal. 102; Joyce v. Shafer, 97 Cal. 335; Garberino v. Roberts, 109 Cal. 125.)
In the present case, the parties have made their agreement in clear and definite terms. The plaintiff agreed with the defendant that he would pay to it certain sums of money at certain times, and the agreement of the defendant is equally explicit and clear that in consideration of the full, and due performance of the agreements on the part of the plaintiff it would execute to him a conveyance of the land. That there might be no misunderstanding of these respective obligations, they further declared that it was expressly understood and agreed between them that in all matters and things to be done, and all payments to be made by virtue of the contract, “time shall be of the very essence of this agreement”; and, further, that the due *20performance of all covenants and agreements on the part of the plaintiff was a condition precedent to the obligation of the defendant to perform its agreement. The plaintiff does not claim that he performed his covenants and agreements according to the terms of the contract, but by express allegation shows that he did not do so, nor does he offer any excuse for their non-performance. Neither does he allege or contend that the defendant has violated any of the obligations assumed by it under the contract. By the terms of the agreement the defendant was not required to make the conveyance except upon the full payment of the purchase price by the 21st of February, 1895, and it is not alleged in the complaint that such purchase price was then paid, or that it was tendered until many months thereafter. The plaintiff could not maintain an action against the defendant to recover the money paid by him, unless there had been a breach of the contract by the defendant, and, the defendant was not guilty of a breach of its obligation by failing to execute the conveyance, when the plaintiff was himself in default, or by refusing to comply with the demand of the plaintiff made many months after he had lost his right to the enforcement of the contract. Section 1490 of the Civil Code provides: "Where an obligation fixes a time for its performance, an offer of performance must be made at that time, within reasonable hours, and not before nor afterward.” The time for the performance of the obligation-by the plaintiff was fixed by the contract, and under the provisions of this section he was required to perform his contract at that time, and not before or afterward. As the contract also declared that time was of the essence of the obligation, the provisions of section 1492 of the Civil Code are inapplicable, and the offer of performance subsequent to the time fixed by the contract was unavailing.
The provision that in case of default by the plaintiff to comply with his agreement he should forfeit his right to whatever moneys he might theretofore have paid, and that the defendant should be released from all obligation to convey the property, was but a declaration in express terms of what would have been the legal rights of the parties without such provision. The plaintiff had agreed to pay the money to the defendant as a condition precedent to his right to demand a conveyance of the *21land, and as the consideration for the defendant’s agreement to make the conveyance, and he could not by his mere default become entitled to repossess himself of the money which he had paid under this express agreement. Whether the money thus paid was styled by the parties as penalty, or forfeiture, or liquidated damages, is immaterial. This provision was not an executory agreement for “damage to be paid or compensation to be made for the breach of an obligation,” for which provision is made in section 1670 of the Civil Code, but the money therein referred to was money that had been paid by the plaintiff in discharge of an obligation which he had assumed, and the right of the defendant to receive and retain it was not impaired by the term in which it was styled in the agreement.
Garoutte, J., and Van Fleet, J. concurred.
Rehearing denied.