On Petition for Rehearing.
(132 Pae. 710.)
Mr. Justice Bakindelivered the opinion of the court.
3, 4. The principal ground of the motion for rehearing is that the quitclaim deed from Graham to Merchant reconveyed only Graham’s undivided interest in the land to Merchant, and that defendant’s equity still remains. The error in this contention lies in the fact that Barbour sustains no contractual relations with Merchant. The contract between Barbour and *242Graham is not signed, by Barbour, and although in a suit by him against Graham on the contract, it might be good under the statute of frauds and bind him to pay half the price of the land, yet it would not make Barbour a party to Graham’s contract.with Merchant, as he had no remedy against Barbour; and Merchant owed him no duty except to convey the property to bim jointly with Graham, upon full payment of the purchase price. The first clause of the contract between Merchant and Graham, which provides that Merchant shall sell and convey to Graham, or such other person as Graham shall direct in writing, relates only to the final consummation of the contract, or some part of it. There is no provision that Merchant shall owe any duty to anyone but Graham, but only to convey to anyone named by Graham who pays the money. ' Barbour, having no contract with Merchant has no claim upon him. Barbour has not agreed with Merchant to purchase nor to pay $90,000. Therefore Merchant had no one to deal with other than Graham; and on March 20, 1894, when Graham quitclaimed to Merchant, he waived the demand provided for in the fifth paragraph of the contract, and terminated and surrendered it. Consequently Barbour could not object unless before that time he had tendered the purchase price of the land. Merchant by contract was under obligation to no one except the one named in writing by Graham upon the payment of the money; and, though the contract by Graham with Barbour might be considered a request to Merchant to convey to Barbour, yet Merchant was not called upon to recognize it until there was a tender of the money, which was not made. For 20 years after the agreement with Graham, and for 10 years after Graham had surrendered his rights, the defendant did nothing to carry out his agreement with Graham. He has not *243paid a dollar nor made any claim under bis agreement. In fact, be abandoned tbe agreement, and there is no equity in bis favor.
Tbe motion is denied.
Affirmed : Rehearing Denied.