Coles v. Shepard

• Citation: 16 N.W. 153,30 Minn. 446
• Parties: Margaret Coles v. Harvey C. Shepard
• Decision Date: 08 June 1883
• Court: Supreme Court of Minnesota (US)

16 N.W. 153

30 Minn. 446

Margaret Coles v. Harvey C. Shepard

Supreme Court of Minnesota

June 8, 1883

Appeal by defendant from an order of the district court for Washington county, Crosby, J., presiding, refusing a new trial. The case is stated in the opinion.

This disposes of all the defendant's positions which we deem it necessary to discuss, and the result is that the order denying a new trial is affirmed.

Gregory & Lee, for appellant.

The contract of which specific performance is sought in this action is one of which time is the essence. The parties had a right to make it. The contract, having been broken, should not be enforced. A court of equity has no right to interfere to make a new contract which the parties have not made. Taylor v. Longworth, 14 Pet. 172. Green v Covillaud, 10 Cal. 317; Grey v. Tubbs, 43 Cal 359; Potter v. Tuttle, 22 Conn. 512; Smith v Brown, 5 Gil. (Ill.) 309; Kemp v. Humphreys, 13 Ill. 573; Milnor v. Willard, 34 Ill. 38; Heckard v. Sayre, 34 Ill. 142; Steele v. Biggs, 22 Ill 643; Phelps v. Ill. C. R. Co. 63 Ill. 468; Davis v. Stevens, 3 Iowa, 158; Armstrong v. Pier, 5 Iowa, 317; Richmond v. Gray, 3 Allen, 25; Barnard v. Lee, 97 Mass. 92; Benedict v. Lynch, 1 John. Ch. 370; Wells v. Smith, 7 Paige, 22; S. C. 2 Edw. Ch. 78; Leggett v. Edwards, Hopk. Ch. 530, 549; Hubbell v. Von Schoening, 49 N.Y. 326; Delavan v. Duncan, Id. 485; Merchants' Bank v. Thomson, 55 N.Y. 7; Kirby v. Harrison, 2 Ohio St. 326; Scott v. Hickox, 7 Ohio St. 88; Westerman v. Means, 12 Pa. St. 97; Bodine v. Glading, 21 Pa. St. 50; Reed v. Breeden, 61 Pa. St. 460; Thompson v. Dulles, 5 Rich. Eq. 370; Prothro v. Smith, 6 Rich. Eq. 324; White v. Bennett, 7 Rich. Eq. 260; Doar v. Gibbes, Bailey, Eq. (S. C.) 363; Willis v. Forney, Busbee, Eq. (N. C.) 256; Hipwell v. Knight, 1 Younge & Coll. 415; Hudson v. Temple, 29 Beav. 536; Honeyman v. Marryat, 21 Beav. 14; Lloyd v. Collett, 4 Brown, Ch. 469; Harrington v. Wheeler, 4 Ves. 686; Omerod v. Hardman, 5 Ves. 722; Alley v. Deschamps, 13 Ves. 225.

Marsh & Searles, for respondent, cited Young v. Daniels, 2 Iowa, 126; Armstrong v. Pierson, 5 Iowa, 317; McClarty v. Gokey, 31 Iowa 505; Murphy v. Lockwood, 21 Ill. 610; Thompson v. Bruen, 46 Ill. 125; National Land Co. v. Perry, 23 Kan. 140; Gorham v. Luckett, 6 B. Mon. 146; Jones v. Robbins, 28 Me. 351; Richmond v. Robinson, 12 Mich. 193; Edgerton v. Peckham, 11 Paige, 352; Willard v. Tayloe, 8 Wall. 557; Seton v. Slade, 7 Ves. 265; Hall v. Delaplaine, 5 Wis. 206; In re Dagenham Dock Co., L. R. 8 Ch. App. 1022; Benson v. Cutler, 53 Wis. 107; Pomeroy on Contracts, §§ 318, 337, 393.

OPINION

Berry, J.

This is an action to enforce specific performance of a sealed contract to convey certain land, executed by Mrs. Anderson, owner of the land, (her husband subscribing in token of his assent,) to the plaintiff. The purchase price was to be paid in 14 instalments of $ 30 each; the first, July 23, 1879, and one every three months thereafter (without interest) till the whole was paid. The contract provided that "upon the just and full payment of said sum (i. e., the price) at the times above stated, time being made the essence of this contract, the party of the first part will, at her own expense, execute and deliver to the party of the second part a good and sufficient warranty deed of the above-described premises, free and clear from all incumbrances except taxes or liens from and since October 1, 1877; and the said party of the second part agrees to make payment of the said purchase price of said premises promptly, at the times above stated, to the party of the first part; and in case of a failure to make payments as aforesaid, at the option of first party this agreement may be declared null and void, and all payments made thereon be declared null and void and forfeited."

The first nine instalments were paid, but the tenth, falling due October 23, 1881, was not. The court below finds that the reason why the tenth instalment was not paid, was that "the plaintiff was negotiating with the said Margaret Anderson and her agent to pay the full amount due and to become due, and to receive a deed of said real estate at once, and was waiting to receive an answer to her proposition to do so." Taking the word "negotiating" in a popular, though somewhat loose, sense, we are of opinion that there is evidence in the case to sustain this finding. On December 1, 1881, Mrs. Anderson and her husband conveyed the land to the defendant, by a deed upon its face "made subject to the terms and conditions" of the contract to convey to plaintiff, upon which this action is based. There is no evidence that Mrs. Anderson or the defendant ever declared the contract null and void. In addition to the clause above quoted from the deed to defendant, it appears that, at the time of his (defendant's) purchase, Anderson, speaking (as we understand the testimony) for himself and Mrs. Anderson, informed Shepard that there were $ 150 still due under the contract, which was all that Anderson or his wife claimed in the land.

We do not feel called upon to determine what would have been the legal effect of the provision making time the essence of the contract, if it was unqualified; for, in our opinion, it is materially qualified by the subsequent provision authorizing Mrs. Anderson, (in case of plaintiff's default,) at her option, to declare the contract null and void. With this qualification, the result is certainly no more than to authorize Mrs. Anderson to treat time as essential by declaring the contract null and void, and not otherwise. This declaration must be made to the plaintiff or her successor in interest. Until it is made, the option is not exercised, and the contract is not annulled, but in force. But upon the findings of the court, which appear to us to be supported by the evidence, we are of opinion, not only that the contract has not been annulled, but that there was a waiver on the part of Mrs. Anderson of strict performance of the terms of the contract as to payments. Anderson appears to have assumed to act for his wife in the premises without any objection on her part, and to have made an arrangement with plaintiff by which the latter was to pay the whole balance of unpaid purchase-money, and receive a deed, without waiting for all the instalments to fall due. The position of the case is then, this: The contract has not only not been annulled, but it is expressly recognized as subsisting in the deed to defendant of ...