
    STANLEY, Respondent, v. PILKER, Appellant.
    (167 N. W. 393.)
    (File No. 4340.
    Opinion filed May 1, 1918.
    Rehearing denied June 1, 1918.)
    1. Specific Performance — Date for Part Payment, Modification of Contract — Finding'—Sufficiency of Evidence — Want of Consideration for Change.
    Where, in a suit for specific performance of a contract of sale of realty, alternative relief in recovery hack of purchase-money paid being asked, trial court found that under the oral contract of a certain date vendor agreed to convey to plaintiff “on or before December 1,” upon part payment being made> while the evidence was that vendee had “until” December 1 to make such payment; there being evidence that, prior to December 1, vendor consented to a modification of the contract so as to authorize such payment on that date, hut that such modified agreement was without consideration, held, the evL ■dence was insufficient to sustain such finding.
    2. Same — Date For Part Payment — “Until,” Whether Right Expired Day Before — Thanksgiving' Day, Effect, re Extension of Time — Statute.
    Where, in a suit for specific performance, the evidence 'showed that vendee had “until” December 11 to make a .certain part payment, held, that, while vendee’s right to make such payment expired on November 30, yet, it appearing that November 30 was Thanksgiving Day, a legal holiday under 'Civ. 'Code, Sec. 24-61, he was thereby granted another day in which to perform.
    S. Same — Date For Part Payment — Denial' of Vendee’s Right Thereafter, Finding On — Modified Contract Without Consideration — Default Under' — Recovery Back — Useless Tender.
    In a suit for specific performance, and for alternative relief in recovery hack of a part payment made by vendee, the evidence showing the original contract permitting a specified second (payment to he made up “until” December 1, was modified by subsequent agreement, without consideration, permitting such payment to be made “on ot before” December 1, vendee having on that date tendered and made good such second payment, and trial court having found that vendor denied to vendee any rights whatsoever under the contract after November 30, instead of finding that vendor merely refused to carry out the contract as modified but had not refused to carry out the original contract, and vendor having based his refusal to accept the second payment on ground that vendee’s rights were fortified, ■ and not because contract did not permit of a payment of hut the amount of shid second payment, held, that vendor’s theory released vendee from the' useless act of making further tender, and he was entitled to recover back the first payment made.
    Appeal from 'Circuit Court, -Lyman Oounty. Hon. L. L. Fwjegur, Judge.
    Action by J. E. 'Stanley, against Erad Pilfcer, for specific performance of a -conitir-aat off sale eof reality, arid- for alternative relief in recovery back off part punchase mloiney. From a money judgment for plaintiff, and frolmi an oaldlelr dienyiing a new ibniial, (defienidamt appeal®.
    Affirmed.
    
      Bar tine, Bar tine & Wail, for AppieHlamt.
    
      Brown & Brown, for Respondent.
    (i) To polint one off (lie opinion, Appellant cited1: C'i'ty off Garden v. Merchants & Farmers! Nat. Blank, 6o Pac. 823, 824, 8 Kan. App. 785.
    Respondent rated: 39 Cyc. pages 841, 842, notes 45, 46 aitfd 47; Penn Placer Mining Oo. et all v. Schreiner et aü 35 Pac. 878.
    (3) To point three io(f the opinion', Appellant cited: Hansidhka v. Vbidlopedh et iaL, S'. D'. 20, S. D. 551; Pfeifer v. Norman. (N. D.) 133 N. W. 97.
   WHITING, P. J.

Plaintiff sought spefcffie .performance off a ■contract tor the purchase of certain real' estate and1, ais alternative relief, asked a money judgment to recover the money paid upioln such contract. Trial to the count -amid: the alternative' relief was granted! plaintiff. The court found that defendant was the owner of the lainldl liln quesition; that on September 5, 1916, in consideration of $500 to him paid' by plaintiff, he entered1 into- am orai Contract with plaintiff whereby be agreed to convey said lands' to plaintiff oir to any purchaser procured' hv plaintiff on or before December r, 1916; that the $500 was to be deemed a part payment of the - purchase price; that ai partial payment of $1,000 mbre was to1 be ipiaild on or (before December 1, 1916; that on December 1, 1916, plaintiff informed defendant that be elected to become the pu'ndhais'er of the land; that he ithem offered bo pay the defendant thle $1,000 then due; that defendant refused' to .•accept tine $1,000, claiming that plaintiffs time to exercise his rights expired on November 30, 1916; that plaintiff thereafter, on December 1, 1916, deposited! in: a baink, to 'defendamos credit, the said $1,000 and defendant wais|, within a reasonable time, .notified1 of such deposit; that plaintiff thereafter demanded' of defendant that defendant execute a Contract in writing providing for the conveyance of said land to plaintiff pursuant to the terms, •of the oral contract; (that defendant has: at ail times since refused to execute 'any 'wirittem Contract or to recognize that plaintiff has :amy right whatever ¡ten a 'Conveyance of said land’ and has at all times since December 1, 1916, Naimed that plaintiff’» right's under the ora! contract Were terminated anldl the $500 paid forfeited to defendant; and that the $1,000 deposited in the bank lias been returned to plaintiff but defendant hast retaimedi tine $500 and refuses to refund the same. Drom the judgment and an order denying a new trial this appeal1 was taken.

Appellant does not question the sufficiency of % the findings to support the judgment, but questions 'the sufficiency of the evidence to support some df the findings. Hie contends that the •evidence was 'insufficient to support the finding that any such contract as found was 'entered into on September 5, 1916. In this contention we think appelant correct — the contract entered! into in September was different from that found by the 'Count. There wias, however, evidence warranting the court in finding that, prior to December 1st, appellant had consented to a modification of the ¡oriiglimall 'contract so tibiat, as modified), it authorized the payment of $1,000 on Decemiber let. Appellant Contends, and ciorreatly, tihlat there was ntO' evidence to shoiw that any consideration was) ¡received by him for -s-uidh modification.

Appellant Contends thlat respondent's righto expired on November 30, 1916. It is -dear that this wlas the main, proposition upion which he based bis defense. The evidence was to- the effect that respondent had “until)'' December x to- m-ake the $1,000 payment. Appellant -contends that, under tire true meaning of the wlard “until,” this gave respondent upi itb November 30th only in which to' make suldb payment, anld that, tsuch payment not having been made prior to Decemiber 1 the $500- payment was forfeited. It so happens!, however, ¡that November 30th wais Thanksgiving Day, a -legal holiday, and, under the express provisions of our statute (section 2461, C. C.) respondent was granted another day in which to .perform, that which he would otherwise have been entitled to- perform' on November 30.

The trial count found that appellant denied to respondent ¡any rights whatsoever under the contract after November 30th. If the trial court ¡had found that appellant merety refused to carry out -the contract as modified, but baldl not refused to Carry exult the original' contract, appellant might now be warranted in clazimiug that he was never in, default — that the agreement to adeept only $1,000 on or before December isit, being without 'Consideration!, was nloit binding upon him. Bulfc appellant having based bis refusal to' accept the $1,000 out the ground 'that respondent's rights ware forfeited, and not upon the ground that the terms of the contract -did not penmliit tíf a payment of but $1,000, it released respondent from the useless act of making any 'further tender; and respondent was then entitled to recover the money which he had paid.

The judgment and order appealed from are affirmed.  