The plaintiffs obtained judgment against the defendant for the sum of $3,405.75, and costs. From that judgment this appeal is prosecuted on the judgment roll.

The parties hereto entered into the following contract:—

From the pleadings, it appears that the plaintiffs here (the parties of the second part) paid to fell© defendant on the 27th of August, 1887, $1,338, on the agreement, and at the same time executed and delivered to it two promissory notes in accordance strictly with the terms of the contract, and at maturity thereof paid the first note, $1,443, principal and interest, and $160.44, being interest on the note due on or before August 25, 1889, and also $13.30, the amount of taxes assessed on the land included in the contract.

On the 26th of August, 1889, when the last note was due, the plaintiffs were ready and willing and offered in writing to pay it and the interest due thereon, and then demanded a good and sufficient deed of bargain and sale of the premises above described, and also that the defendant deliver the water stock included in the purchase. This the defendant failed and neglected to do.

*279 On the twenty-first day of November, 1889, the plaintiffs surrendered possession of the land and premises, and tendered to the defendant a quitclaim deed to the premises and to the water stock, and demanded that the defendant pay back the payments in money that the plaintiffs had made, and interest at lawful rates from the date of making the payments, and that the defendant deliver up the promissory note due August 25, 1889; that the defendant refused to accept the deed of reconveyance or pay the money.

Damages in the sum of three thousand five hundred dollars were prayed for, the rescission of the agreement of August 25, 1887, and that the note due August 25, 1889, be given up and canceled. '

A demurrer was filed, and overruled for want of prosecution.

The defendant then answered, denying damage done to the plaintiffs, and setting up the defense that, prior to the service of summons in this case, it was able and willing to deliver a conveyance and the water stock upon the plaintiffs paying the balance of the purchase price, which offer the plaintiffs declined. And the defendant avers that it is still able and willing to carry out the contract upon the payment by the plaintiffs of the contract price for the property.

The court found that all the allegations of the plaintiffs’ complaint were true, and that they had suffered damage in the sum of $3,405.75; that before November 29, 1889, the defendant failed and neglected to comply with the contract; that on that day, after the commencement of this action, but before the service of summons, the defendant offered to comply with the contract, but the plaintiffs would not accept it; and that since that date the defendant has been and still is ready to deliver the deed and shares of stock on the payment of the balance due" by the plaintiffs. The conclusion of law is, that the plaintiffs are entitled to judgment for $3,405.75, and *280 costs. Judgment was rendered accordingly on the 17th of June, 1890.

The only point which seems to be made for a reversal of the judgment is, that time was not of the essence of the contract, and therefore that the offer of performance on the 29th of November, 1889, was in a reasonable time after the date fixed for performance by the contract, or after suit brought by the plaintiff to rescind.

There is no doubt, however, that time was of the essence of this contract, as is seen by a reference to the opinions delivered in Grey v. Tubbs, 43 Cal. 364 , and Cleary v. Folger, 84 Cal. 321 , where a similar contract was construed with reference to this point.

Time being of the essence of the contract, and the defendant, having failed to comply with it after a tender of performance by the vendee, was in default.

The plaintiffs tendered a deed to the premises, giving all their title thereto, and also the water stock, and surrendered possession of the premises on the 21st of November, 1889, and demanded a repayment back of their money, and the giving up and canceling of their unpaid note. This -was all that the plaintiffs were required to do to effect a rescission of the contract, and having donq this, no subsequent offer of performance on the part of the defendant would relieve it from the effect of its default. Therefore we advise that the judgment be affirmed.

Gibson, C., and Vanclief, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment is affirmed.