Ziehen v. Smith

Ziehen (plaintiff) contracted to buy land from Smith (defendant) and paid five hundred dollars down; the date for mutual performance, the balance payment and transfer of the deed, was September 15, 1892. Unknown to both parties, there was a third-party mortgage on the land, and a foreclosure action on that mortgage had begun on July 21, 1892. On September 15, Ziehen neither offered to pay the price nor demanded performance from Smith. The foreclosure was granted on September 30. Ziehen sued to recover his down payment, and the trial court found for him. Smith appealed.

Whether, to maintain an action for breach of a land-sale contract calling for concurrent performances, the buyer must show that he tendered or offered performance and demanded performance from the seller.