Cleary

This was an action to recover the sum of nine hundred dollars, alleged to have been received by the defendant for the plaintiff’s use. The court below, upon the evidence offered by the plaintiff, granted the motion of nonsuit made by the defendant. From the judgment thereupon rendered, and an order denying a new trial, this appeal is taken.

The facts of the case are, that the two parties to the action entered into a contract, which is as follows: —

On the 12th of September, 1887, the plaintiff notified the defendant in writing that he rescinded the contract, *319 and he demanded back the nine hundred dollars, which, under the terms of the contract, had been paid over and designated as “ a forfeit.”

Up to that time neither the plaintiff had tendered the payment of the balance of the purchase-money, nor the defendant a deed, etc., to the premises.

Upon this, the defendant failing to pay back the deposit, the plaintiff institutes this action. The defendant answered and filed a cross-complaint, the object of which last was to force the plaintiff to comply specifically with the contract, and pay the balance of the purchase-money upon the defendant’s making a good and sufficient…