McDaniel v. Daves

(after making the foregoing statement), •delivered the opinion of the court.

Under the rule applicable to a demurrer to the evidence, the jury might have found, and hence this court must hold, that the plaintiff was ready, able and willing to perform the contract on his part, and that the defendant was wholly in default.

The defendant was unable to perform his contract, and abandoned any effort to do so before the time fixed (January 20, 1921) for closing up the contract according to its terms, and so notified the plaintiff. Under these circumstances, no tender of a deed by the plaintiff to the…