
    No. 533
    SCOTT v. RICHARDS
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1489.
    Decided March 4, 1927.
    1100. SPECIFIC PERFORMANCE — A partial payment is not a sufficient tender upon which to base an action for specific performance.
    First Publication of this Opinion
    Attorneys — F. S. Monnett and C. R. Doll for Scott; Lucas & Keating for Richards; all of Columbus.
   BY THE COURT

This is an application for re-hearing.

Counsel for plaintiff in error urges a rehearing chiefly upon two points, first that $100 had been paid on the purchase price and, second, that the first tender under the contract should have been made by the vendor..

In respect to the payment of $100 we think that alone would not relieve against the tender required on behalf of plaintiff as a basis for an action of specific performance. We are of the opinion that the contract contemplated mutual and reciprocal duties in its performance. The plaintiff, being the party who seeks equitable relief, must aver and prove, that he himself was ready, able and willing to perform and that he had tendered actual performance. Brewing Co. v. Maxwell, 76 OS. 34.

Application denied.

(Ferneding, Kunkle and Allread, JJ., concur).  