Kicks v. State Bank of Lisbon

• Decision Date: 01 February 1904
• Docket Number: 6731
• Court: North Dakota Supreme Court

98 N.W. 408

12 N.D. 576

ANNA M. KICKS, ADMINISTRATRIX OF THE ESTATE OF JOHN H. KICKS, DECEASED, v. STATE BANK OF LISBON

No. 6731

Supreme Court of North Dakota

February 1, 1904

Appeal from District Court, Ransom county; Lauder, J.

Action by Anna M. Kicks, administratrix of John H. Kicks, against the State Bank of Lisbon. Judgment for plaintiff, and defendant appeals.

Modified.

Judgment modified and affirmed.

Rourke & Kvello, for appellant.

The proper measure of damages, where the vendor has failed to fulfill his part of the contract is "the money paid with interest, less the value of the use and occupancy of the land." Todd v. McLaughlin, 84 N.W. 146.

Respondent being first in default, cannot recover. Aikman v Sanborn, 52 P. 729; Arnett v. Smith, 11 N.D 55, 85 N.W. 1037; Maloy v. Muir, 86 N.W. 916.

The purchaser before beginning action must offer to perform on her part, or show that at the time performance was due on the part of the vendor, it could not furnish a good title to the land. Joyce v. Shaffer, 32 P. 320; Townsend v Tufts, 30 P. 528; Senate v. Sheehan, 27 Minn. 328; Way v. Johnson, 58 N.W. 552.

Neither the conveyance to a third person by the vendor, nor allowing his title to be lost by foreclosure, will justify the vendee in treating the contract as abandoned before the time for performance by the vendor has arrived. Vendee must offer to perform or show that when performance was due, the vendor could not furnish title. Gaberino v. Roberts, 41 P. 857; Pate v. McConnell, 18 So. Rep. 98; Ziehan v. Smith, 42 N.E. 1080.

Where vendor fails to perform his contract, or renders himself unable to, it is not a rescission, but affords ground for rescission by the vendee. The purchaser cannot rescind if he is first in default. Aikman v. Sanborn, 52 P. 729; Aikman v. Murphy, 55 P. 1099.

Before vendee can recover money paid on contract for the purchase of land, he must show performance on his part, a tender of the amount to the vendor under the contract, or a rescission by the parties. Way v. Johnson, supra.

When one party to a contract has partly performed it, and then refuses further performance, the other party being ready and willing to perform, cannot recover for what has been advanced. Ketchum v. Evertson, 7 Am. Dec. 384.

A vendee voluntarily in default cannot recover money paid on contract. Satterlee v. Cronkhite, 72 N.W. 616.

Conveyance of the land by the vendor, before the time of performance, is not a breach of the contract. Garbarino v. Roberts, 41 P. 187.

M. A. Hildreth, for respondent.

Previous default in payment of interest or taxes on the part of vendee is waived by the vendor by his subsequent acceptance of payment. Fargusson v. Talcott et al., 7 N.D. 183, 73 N.W. 207; Buckholz v. Leadbetter, 11 N.D. 473, 92 N.W. 830.

Offer of performance by vendee was not required when vendor had by its own acts made performance unnecessary. Wilhelm v. Fimple, 31 Ia. 131, 7 Am. Rep. 117; Bennett v. Phelps, 12 Minn. 326; Warner v. Lockerby, 28 Minn. 30; Herrick v. Newell, 51 N.W. 819.

If the vendor of real estate, under an executory contract, is unable to perform on his part, at the time provided by the contract, a formal tender or demand on the part of the vendee is not necessary in order for him to maintain an action to recover the money paid on the contract or for damages. Hudson v. Swift, 20 Johns. 24; Fuller v. Hubbard, 6 Cow. 13; Greene v. Greene, 9 Cow. 47; Hartley v. James, 50 N.Y. 38; Bigler v. Morgan, 77 N.Y. 312; Burwell v. Jackson, 9 N.Y. 547; Borgardas v. N.Y. Life Insurance Co., 101 N.Y. 328, 4 N.E. 522; Tamsen v. Schaefer et al., 108 N.Y. 604, 15 N.E. 731; Zeihen v. Smith, 148 N.Y. 558, 42 N.E. 1080; Cooke v. Daggett, 2 Allen 439; Trinkle v. Reeves, 25 Ill. 214; Richards v. Allen, 17 Me. 296; Smith v. Lamb, 26 Ill. 396; Appleton v. Chase, 19 Me. 74; Colville v. Besly, 2 Denio. 139; Greene v. Greene, 9 Cow. 47; Selleck v. Tolman, 87 N.Y. 106; Page v. McDonald, 55 N.Y. 299; Lawrence v. Miller, 86 N.Y. 131; Dennis v. Strassburger, 89 Cal. 583, 26 P. 1070; Phelps v. Brown, 95 Cal. 572, 30 P. 774; Drew v. Pedlar et al., 87 Cal. 443, 25 P. 749; Scott v. Glenn, 87 Cal. 221, 25 P. 405; Easton v. Montgomery, 90 Cal. 307, 27 P. 280; Anderson v. Strassburger, 92 Cal. 38, 27 P. 1095.

The usual rule of damages on failure of vendee to take the property purchased is the difference between the actual contract price and the actual value of the land at the time of the breach. Drew v. Pedlar, 87 Cal. 443, 25 P. 749.

Where there is a rescission or abandonment of a contract, either by the parties or by operation of law, the vendee is clearly entitled to recover what was paid under the contract so rescinded. Tice v. Zinnser, 13 Hun. 366; Bohall v. Diller, 41 Cal. 433; Shively v. Semi-Tropic M. and W. Co., 99 Cal. 259, 33 P. 848; Merrill v. Merrill, 103 Cal. 287, 35 P. 768, 37 P. 392; Glock v. Howard & Wilson Colony Co., 123 Cal. 1, 55 P. 713, 69 Am. St. Rep. 17.

OPINION

MORGAN, J.

In December, 1892, John H. Kicks and the State Bank of Lisbon entered into a contract for the sale of eighty acres of land in LaMoure county under the crop payment plan. Said Kicks died soon thereafter, and the plaintiff, Anna M. Kicks, succeeded to all his rights under said contract, after a due administration of his estate. The price to be paid to said bank for the land was $ 800, with 8 per cent interest on deferred payments. At the time the contract was entered into the land was wild land, without any house or improvements thereon. Under the contract forty acres were to be broken in 1893, and the balance in 1894. Forty acres were broken in 1893, thirty acres in 1894, and ten acres in 1895. There was no house on the land, and plaintiff lived on adjoining land in a house thirty rods from the land in suit. Payment was to be made by turning over to the bank one-half of the crop raised each year, and credit was to be given on the contract for such sum as the crop turned over amounted to at the then market price. Taxes were to be paid by the plaintiff. The bank agreed in the contract to execute and deliver to Kicks a good and sufficient warranty deed of said land upon full payment of said sum of $ 800 and interest. Time was not of the essence of the contract, by express terms or otherwise. The plaintiff farmed the land up to and including the year 1900, and made payments on the contract, aggregating $ 557.27, by turning over one-half of the crops raised. Taxes were paid by plaintiff during three years, aggregating $ 32.35. When the contract was entered into there was a mortgage on the land. This mortgage was not mentioned during the negotiations nor in the contract. In December, 1899, this mortgage was foreclosed, and in December, 1900, a sheriff's deed was issued under the mortgage sale to the mortgagee, as no redemption was made by the bank from such sale. This mortgage included in it other lands than the eighty acres in suit, and the total amount for which the sale was made was over $ 6,000. The plaintiff rented the land from the owner, under the sheriff's deed, for 1901, and after that year had nothing more to do with the land. This action is brought to recover the money paid by her on the contract and for the amount paid for taxes, as money had and received under the contract. The answer alleges, (1) a forfeiture of said contract by plaintiff's failure to pay taxes thereon since 1895; (2) a forfeiture of said contract by plaintiff's failure to turn over to it the proceeds of the 1900 crop; (3) a counterclaim growing out of the plaintiff's use of the land from 1892 to 1899. The trial court ordered judgment for the plaintiff for the sums paid, with legal interest thereon from date of payment. Defendant appeals from the judgment, and requests a review of the entire case.

It is contended by the appellant that the plaintiff cannot recover in this action, for the reason that she forfeited all rights under the contract by failure to pay the taxes after the year 1895. The taxes were not paid by the bank, but by the mortgagee, to protect his security. The bank received the proceeds of the crops up to and including the year 1899, and no action was taken by it to forfeit the contract on account of such nonpayment of the taxes for those years. The bank accepted the proceeds of the crops unconditionally, without suggestion that the taxes had not been paid, and without paying them itself and deducting from the credit given on the contract the amount paid, as it had done on two previous years. Under prior decisions of this court, it cannot now claim such nonpayment as a ground for forfeiting the contract. If it desired to cancel the contract on this ground, it should have moved promptly, and by failure to do so the default was waived. Fargusson v. Talcott, 7 N.D. 183, 73 N.W. 207; Buchholz v. Leadbetter, 11 N.D. 473, 92 N.W. 830; Ross v. Page, 11 N.D. 458, 92 N.W. 822; Russell v. Timmins, 13 N.D. 487, 99 N.W. 48.

It is further claimed by appellant that plaintiff is barred from recovering in this action, because no tender was made of the unpaid purchase money, and no deed was demanded before the action was commenced. That the demand and tender were not made is true, nor could a tender of the balance to become due be made. That balance was not due until realized out of the land by raising crops thereon. The plaintiff had fully performed the contract by turning over one-half of the crop for each year up to 1900, and was not, therefore, in default. No tender could therefore be claimed before the suit was commenced, under the terms of the contract. All the terms of the contract had been performed up to the time of the foreclosure. The defendant had permitted its title to become vested absolutely and beyond redemption in another....