This suit is based on the following agreement
“Whereas, George P. Olmstead has this day. sold Smith & Keating all of lot six (6) in block five •(5) in Lucas place, addition to Kansas City, Missouri, for the sum of nine thousand dollars. And whereas, the said Olmstead and wife have this day duly signed and acknowledged a proper deed of conveyance. And whereas, it is mutually agreed that .said deed, .shall . not be delivered; until November 1, 1882 ; and whereas, said mine thousand dollars is to be *605paid upon the said November 1, 1832; therefore, is it mutually agreed that said Olmstead shall have the use of said premises, rent free, until November 1, 1882. And it is mutually agreed that the deed as aforesaid shall be delivered and placed in possession of J. A.. Cooper, to be held by him for the mutual benefit of all parties; and whenever the said Smith & Keating shall pay said nine thousand dollars, upon said first day of November, 1882, said deed to be delivered to said Smith & Keating, or to be delivered at any time prior thereto, upon the joint order of said Olmstead and Smith & Keating. In the event of the death or inability of the said Cooper to act, then in said event the president of the Citizens’ National Bank shall be by this article substituted in the place of said Cooper with like powers.
“In witness whereof, we have hereunto set our hands and seals, this third day of May, 1882.
“George P. Olmstead, [Seal.]
“ Smith & Keating. [Seal.]”
The petition sets up said contract and avers that defendants had refused to pay said sum of nine thousand dollars ; that plaintiff under the contract retained possession of the premises till first day of November, 18S2, when he vacated the same. The answer of defendants was, (1) a general denial and (2) that on or about the ■third day of May, 1832, they entered into an executory contract with plaintiff to purchase the premises on the first day of November, 1832, at nine thousand dollars, but' did not execute said contract on the first of November, 1882, and the same was never executed by them or plaintiff; that about the middle of November, 1882, plaintiff informed defendants that he (plaintiff) regarded said contract as an optional one so so far as he (plaintiff) was concerned ; that defendants now decline to execute said contract and abandon the same; that they have never received a deed for or taken *606possession of said premises; that plaintiff was on the third day of May, ever since has been and now is in the exclusive possession of the same.
A demurrer was interposed to the second defence set up in the answer which was sustained and this action of the court is assigned for error, it being contended, not only that the answer was sufficient, but that as the demurrer cut back to the petition the court in determining it ought to have decided that the petition did not state a cause of action, in that it did not tender a deed to defendants to the real estate sold. As to the sufficiency of the answer we are of the opinion that it failed to set up any defence to the cause of action stated in the petition. Neither the fact stated in the answer that the contract was executory and had not been executed, nor the fact stated that plaintiff informed defendants in November, 1832, that he regarded the contract as optional so far as he, plaintiff, was concerned, constituted any defence. If the answer had alleged that plaintiff and defendants had subsequently to the first of November, 1882, mutual]y agreed that the execution of the contract should be at the option of either party, a different question would have been presented. The m'ere statement by the plaintiff that he regarded the contract optional as far as he was concerned could not have the legal effect of making it so, nor could the statement or admission that the contract, though executory, had not been executed, relieve the party failing to execute it from liability growing out of such failure.
But it is insisted that the petition is fatally defective in not tendering a deed to the land sold. When in a sale of land the promise to pay the price, and the promise to convey by deed are mutual and dependent covenants, we recognize to the fullest extent the doctrine, that in a suit brought by the vendor to recover the purchase price he must either offer to convey or tender a deed so that the vendee, on payment of the price, can lay *607bis bands on tbe deed as bis. In tbe present case, by mutual agreement, tbe deed was executed and acknowledged and placed in tbe band of Cooper as tbe agent of both parties, to be delivered on payment of tbe purchase money, and on such payment by tbe defendants tbeir right, to it would be as complete, and it would be as much in tbeir power to obtain it, as if it had been formally tendered in the petition and brought into court. Cooper, tbe depositary of tbe deed, was as much bound to deliver tbe deed on performance of the condition, that is, ■on payment of tbe purchase price, as he was to withhold it until such performance. 3 Washburn Real., Prop. 304,, 305.- .For the reasons given we''are of 'the' opinion that a cause of action was well stated' ih the petition.
It is further insisted that the court erred in allowing -a witness to state that defendant, Smith, told plaintiff be could occupy the premises after tbe first day of November, 1882. This evidence was objected to on tbe :ground of variance and as being opposed to tbe.averment in tbe petition that plaintiff bad vaeated tbe premises on tbe first of November, 1832. In view of the fact that by the terms of tbe contract it was agreed that plaintiff should remain in possession of tbe premises, rent free, till the first of November, 1882, whereby in a ■certain sense bis possession became the possession of ■defendants, tbe evidence that such possession might be longer continued was neither such a variance, nor contra•diction of the averment of the petition as to affect the Merits of the action. Besides this, it is provided by section 3565, Revised Statutes, that no variance shall be •deemed to be material unless it has actually misled tbe .adverse party to bis prejudice, and that it can only be taken advantage of by affidavit, showing in what respect the party hás been misled. No such affidavit was filed in tbe case.
It is unnecessary to notice tbe instruction given by tbe court, further than to say it embraced tbe theory *608of the case herein, stated, and those asked by defendant and refused were antagonistic to it,_and, therefore, properly refused.
Perceiving no error in the record and the judgment being for the right party it is hereby affirmed.
All concur.