(concurring).
I concur in the disposition to be made of this case. The trial court having found that the plaintiffs had complied with their contract, and the plaintiffs not complaining of the failure of the’ court to grant specific performance, the ground upon which that relief was not granted is, perhaps, immaterial, but I think it is to be gathered from the findings that it was not granted for the reason that the wife of the defendant had not signed the contract and the court was unable to designate and set apart any part of the land as a homestead. Upon the theory that the plaintiffs had complied with the contract, and that the defendant, with or without fault on his part, was unable to convey the property, or, being able, refused to do so, then, in either case, in the absence of specific performance, the plaintiffs were entitled at least to be reimbursed for the money which had been paid to the defendant upon the purchase price. And that appears to have been the measure of damages adopted by the trial court. Indeed, there was no other evidence of damages, except that there was some testimony relating to rents and profits which plaintiffs were seeking to recover if they were found entitled to specific performance.
It is undisputed upon the evidence that Brown, one of the parties to the contract and one of the plaintiffs in the action, paid one-half of the amount that was required to be *549paid on the date of the contract. On the same day C. E. Cotton, the other party to the contract, handed his check for a like amount to Mr. Francis to complete said first installment. That check afterwards came back into the possession of Mr. Cotton without having been cashed. The evidence as to the manner in which that occurred is in direct conflict. Mr. Cotton testified that Francis came back into his office after having received the check, and handed the check to him saying that he handed it back to him on what he, Francis, owed him on the deal; the exact language of his testimony in that respect being as follows: ‘‘My statement is that the day the contract is dated, the day it was signed, was the day and date the checks were turned over to him at my office and he accepted them and went out. * * * * He brought the check back, endorsed it and took credit for it. He brought the check back to me after having gone to the Citizens Bank with Mr. Brown. Fie brought the check back and said: ‘Take this back on what I owe you on the deal.’ * * * * After the check was turned over we all went to the Stock Growers Bank and put the contract in escrow.” Fie further testified that when the check was returned to him Francis took a receipt for the amount thereof as part of what was owing to him, Cotton. Francis denies that Cotton obtained the check in the manner testified to by him, and gave a different version of the transaction from which it is contended that the check had never been delivered to Francis or accepted by him in such a manner as to constitute the transaction a payment of Cotton’s one-half part of the first instalment of the purchase price required by the contract to be paid at the date thereof and acknowledged therein to have been paid.
The question whether the' first payment had been made was within the issues, for if that payment had not been made then the plaintiffs had not complied with their part of the contract. Whether it was made or not depended upon the view to be taken of the evidence respecting the manner of delivery and acceptance of Cotton’s check. Upon the *550conflicting evidence concerning that matter the trial court found that the payment as required by the contract was made. If the first payment was made, then the proper amount to complete the purchase price was tendered. The evidence as to the payment of one-half of the amount of the first instalment that was to be paid by Cotton, being, as above stated, in direct conflict, the finding of the trial court on that matter should not be disturbed and we must consider the case from the standpoint that the first payment was made. The first required payment having been made, a fact which we accept as established in the case, the return of Cotton’s check to him was equivalent to handing him the amount thereof in money, and whether, as between him and Francis, he thereby received something to which he was not entitled is not within the proper issues of this case.
It is very clear that the amount allowed for interest on the sum tendered by Delahoyde is not recoverable by the plaintiffs as damages. We suppose that it was allowed on the theory that it was necessary to keep the tender good. I am not satisfied that the evidence sufficiently shows that the amount was deposited and retained in the bank in such a manner as to keep the tender good, and deprive Dela-hoyde of the use of the money. But, aside from that question, if it was necessary for the plaintiffs to keep the tender good beyond asserting in the petition in the action a readiness to pay the balance of the purchase price, it does not appear that any other part of the price tendered was so held, retained or deposited as to keep good the tender of the whole amount of the purchase price. Upon the theory, therefore, that it was necessary to keep the tender good, we do not understand that keeping good the part of the amount which was to be paid by Delahoyde would have been sufficient. But under the circumstances of the case, the defendant having refused to accept the money when tendered and refused to convey the property, it was unnecessary for Delahoyde to keep the money on deposit in the bank subject to the acceptance of Francis, but it was *551sufficient for the plaintiffs to allege in the petition, after showing that the balance of the purchase price had been tendered, that they were ready, able and willing to pay the amount thereof, or they could have deposited the same in court. We cannot agree, therefore, with the conclusion of the trial court that Delahoyde was deprived of the use of the money by the defendant’s refusal to accept -it when tendered or to convey the property. Whether, by keeping the tender good if necessary, he would have been entitled to interest upon the amount is a question upon which I express no opinion.
Beard, Justice, concurs in the conclusions reached in the foregoing opinions.