— Action on contract made on the twenty-sixth of March, 1890, between J. R. Barrett and David O. Metsker. Action brought March 24, 1893. Judgment for plaintiff on Eebruary 8, 1895, for $2,991.28.

Barrett was the owner of a tract of land in the suburbs of the city of Sedalia. Becoming desirous of bringing it into market, he, as party of the first part, entered into the contract .aforesaid with defendant Metsker as party of the second part; said defendant to construct an electric railway at defendant’s own expense to said lands. In consideration of the defendant’s agreement to build said railway to said land, and to maintain and operate it, the plaintiff contracted to sell him a half interest in said real estate for the sum of-$32,500 which was to bear six per cent interest per annum, payable semiannually on the fourth of August and fourth of Eebruary of each year. The purchase money was to be paid, so the contract provides, in the following manner: “The north forty to forty-five acres of land in section- four to be platted into lots and blocks and sold to the best advantage and at prices agreed upon by both parties, the proceeds, including all notes, mortgages, deeds of trust and eon-*88tracts of such sale, after paying expenses of sale, interest and taxes, to be retained by the party of the first part at par value, the amount of one half of sale to be credited as cash by the party of the first part at the time the sales are made on the $32,500, owing by the party of the second part.”

Among other stipulations of the contract were the following:

“It is further agreed that if there is not enough of lots sold or money received when the party of the second part’s interest becomes due to pay the same, the party of the second part is to pay his interest on his purchase money, and his part of the taxes outside of the contract.”

“It is further agreed by both parties, if the $32,500 and interest, taxes and expenses are pot paid out of the party of the second part’s proportion of the sales as aforesaid, or otherwise, to the party of the first part, within three years from this date, then the party of the second part forfeits all interest in the above described land and title reverts to the party of the first part, and thereupon in such case the party of the second part is released from all obligations of this contract, as fully and completely as though the same never existed.”

The defendant in accordance with his contract built the electric railway at his own expense, and maintained the same' as required by the agreement. The land was platted and laid off into lots and blocks. On the eighth of August, 1891, lots had been sold amounting to $4,013.50, according to plaintiff’s statement, after paying all expenses of sale, and afterwards on the thirteenth of February, 1894, three other lots were sold for one half of net proceeds, amounting to $181.50. The defendant did not pay out of his own means the interest that became due February 1, 1892, August 1, 1892, and February 1, 1893, claiming that he was not liable therefor under his contract and that the contract had not been complied with upon plaintiff’s part, in that he had not *89applied the proceeds of the sale of lots to the payment of said mortgage as stipulated in contract.

Under the last paragraph quoted from the contract in question, it is quite plain that Metsker not having paid either the principal sum of $32,500, nor the interest thereon, and the three years specified having elapsed two or three days after suit brought, it must follow that he forfeited whatever rights he had obtained under the contract, and was at the same time and for the same reason, exonerated from all obligation thereunder. The words of the paragraph mentioned mean this or they mean nothing. Suppose for instance, that defendant had been actor and sued on the contract after the lapse of the three years, and he being in default, can it be doubted that Barrett could successfully plead the paragraph under discussion in bar of the action; plead that by reason of his default, Metsker had forfeited all his interest in the contract, and all his rights thereunder “as fully and completely as though the same never existed?” But one answer, an affirmative, can be returned to this question.

The same default and lapse of time which would bar defendant’s recovery if plaintiff, must also bar plaintiff’s recovery in the present suit. Therefore judgment reversed.