ON REHEARING.
ESTOPINAL, J.After mature consideration of the brief *187on rehearing filed by the learned counsel for the defendant, and a re-examination of the record and testimony, we have concluded to adhere to our former opinion and decree rendered in this case. The elimination from consideration of the testimony of the witness, Tester, whose testimony was inadvertently used and referred to in our former opinion, does not alter what we conceive to b the true state of facts connected with this controversy.
The question about which this Court was mainly concerned, and which promoted us in granting a rehearing in the case, was that of “tender.”
The defendant’s position is, that the contract of sale is not dissolved of right, but that the party complaining of the breach must either sue for its dissolution or demand a specific performance, and that plaintiff; having chosen the first privilege, an action for dissolution, the obligation is not dissolved and is an en-iorcible one until the judgment dissolving the contract becomes final, and that, therefore, the party complained against has a right to comply with the contract up to date of the filing of suit if not to the finality of the judgment.
Defendant relying upon the legal proposition advanced above, takes the position that having made a tender to the plaintiff before filing of suit, again during the trial below and again, upon the argument in this Court, that plaintiff’s demand should be rejected.
The record justifies the statement that the tender made on the trial below is supported by the testimony of Mr. Testard alone, and is simply a continuation of the statements and tenders. made from time to time from the contract of sale. The car at no time gave satisfaction, and we have no reason to believe that the car at the time of the trial below was in any better condition than on the other several occasions when it was “tried out,” preliminary to tender, and besides, we do not find that there was any formal tender accompanied' by costs presented to the lower Court for consideration and decision.
We do not question the legal proposition that even during trial defendant was yet in time to perform his contract.
The question here is one of fact, “has defendant performed his contract, and has he made such a tender as this Court can pass upon?” We think not.
March 8, 1909. Writ refused by Supreme Court April 14, 1909.Our previous opinion and decree remains undisturbed.
Moore, J., dissents.