
    Franklin v. McCormick et al.
    
    No. 10184.
    January 18, 1935.
    Rehearing denied February 22, 1935.
   Beck, Presiding Justice.

1. The general demurrer based upon the grounds that the allegations of the petition failed to show an equitable cause of action, and failed to set out the requisite facts upon which to base the right to specific performance, is without merit.

2. There is no merit in the contention of the defendant that the first extension payment provided for in the option was not paid when due, and that the option had expired. While time is of the essence of such a contract as that in question, the allegations show that the payments which the plaintiff claims to have made were in time.

3. It does not appear from the allegations of the original petition and the amendment that performance of the terms of the contract and the option, on the part of the defendant who executed the written option, was impossible.

4. There was sufficient allegation to show a tender on the part of the plaintiff in accordance with the terms of the option, properly construed.

5. The court did not err in striking the several defenses wherein the defendant sought to set out details showing such unfairness in the transaction that specific performance would not be granted.

6. The court did not err in striking the defenses seeking to show fraud on the part of the plaintiff in procuring the option. And this ruling is applicable to the specified paragraphs of the amendment offered by the defendant.

Judgment affirmed.

All the Justices concur.

Joseph Law and Sibley & Allen, for plaintiff in error.

"W. M. Goodwin, E. W. Jordan, Fullbright & Burney, Hines & Carpenter, Lewis & Lewis, and Colquill, Parker, Troulman & Arkwright, contra.  