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The action is to recover from the vendor moneys paid by the vendee under contracts of sale of real estate, in which the vendee only was in default, not being willing or able to make the other payments within the time limited or at all. There were two contracts. The first is dated June 30, 1902, executed by the defendant, Florence B. Moore, and others, and conditioned for the sale of the property to one J. W. McCauley. This contract provided for a purchase price of one hundred and twenty-five thousand dollars, of which five thousand dollars should be paid when the instrument was executed; fifty-five thousand on or before October 28, 1902; the remaining sixty-five thousand on or before the first day of March, 1903; all deferred payments to bear interest at the rate of five per cent per annum. It was further provided that “Time is of the essence of this contract, and in the event of a failure to comply with the terms hereof by the party of the second part, the party of the first part shall be released from all obligation in law or equity to convey said property, and the party of the second part shall forfeit all right thereto." The initial payment of five thousand dollars was made,…