The contract set out in the second paragraph of the complaint, the execution of which is admitted, established between the plaintiff and the defendant Gaskins the relation of vendor and vendee. It is not an “ option.” It does not provide that the plaintiff will convey if the said defendant elects to pay a certain sum on or before a certain day. It binds both parties — the one to sell and convey, and the other to accept the deed and pay for the property. The obligation being mutual, neither can escape its force without the consent of the other. Time is not of the essence of such a contract. The vendee thereunder, in possession, has the rights of a mortgagor, while those of the vendor are similar to the rights of the mortgagee.
There is no dispute about what property is covered by this agreement, and the price is fixed by reference to its cost, and the latter is established by the deed made to the plaintiff.
We find in the record mo evidence sufficient to establish an abandonment of this contract by the defendant Gaskins. What amounts to such an abandonment was a matter of law to be determined by the Court. Dula v. Cowles, 7 Jones, 290. “The acts and conduct constituting such abandonment must be positive, unequivocal and inconsistent with the contract.” Fair v. Whittington, 72 N. C., 321; Miller v. Pierce, 104 N. C., 389. If the plaintiff relied upon a renunciation of the contract by the defendant Gaskins it was his duty to make it out unmistakably, and also that *112he himself had accepted that renunciation and agreed expressly or impliedly to release the defendant from his obligation. There was some evidence that the defendant considered that he had only “an option” to purchase. There was no sufficient evidence, we think, that plaintiff abandoned or waived any of his rights under the agreement. Hence, both are still bound by its provisions. The defendants insist that the vendee Gaskins has paid a part of the purchase-money. They seem, to concede that the plaintiff* never in fact received any payment either from the hands of Gaskins or from the hands of A. L. ¡Shepherd & (¡o., and indeed there seems to be no dispute about the facts relating to this part of the controversy. Gaskins shipped to A. L. Shepherd & Co. a large amount of lumber under the contract; they did not pay to the plaintiff the sum (one dollar for each one thousand feet) which the contract provided 'they should reserve for that purpose; the plaintiff did not expressly assent to this nor did he dissent; Shepherd & Co. rendered statements to Gaskins from time to time which showed that they had applied to his use all the proceeds of the lumber, and that they had not reserved any sum for plaintiff; ho did not'object, though he examined the accounts. We merely state the facts and our conclusions that no payment whatever seems to have been made to the plaintiff on account of the purchase-money.
From what has been said it follows that there is really no isstie of fact between the parties as the matter is presented in the record before us. The costs" of all the property bought by the plaintiff under the contract prior to April 1, 1892, should be ascertained. To that amount should be added fifteen per cent. The plaintiff is entitled to recover of the defendant Gaskins that sum, with interest thereon from April 1, 1892, and also whatever has been expended by’him in purchases since that date, with fifteen per cent. *113■added, and interest on the cost of each purchase from its date, and a decree of sale should be entered and the proceeds applied according to the rights of the parties.
Error.