Abercrombie v. Stoddard

• Decision Date: 26 May 1924
• Citation: 39 Idaho 146,228 P. 232
• Parties: YOUNG H. ABERCROMBIE and ALICE ABERCROMBIE, Respondents, v. J. M. STODDARD and HANNAH B. STODDARD, Appellants
• Court: Idaho Supreme Court

228 P. 232

39 Idaho 146

YOUNG H. ABERCROMBIE and ALICE ABERCROMBIE, Respondents, v. J. M. STODDARD and HANNAH B. STODDARD, Appellants

Supreme Court of Idaho

May 26, 1924

CONTRACT FOR SALE OF REAL PROPERTY-FORFEITURE-DEED OF CONVEYANCE-ABSTRACT OF TITLE-TENDER-TAXES-INTEREST-DEMURRER-EVIDENCE-INSTRUCTIONS.

1. The stipulation in a contract for the sale of real property whereby A. agrees to furnish S. an abstract of title showing clear title, with the exception of a certain mortgage, and to execute and deliver a deed upon the payment of the final instalment of the purchase price, are mutual, dependent and concurrent stipulations.

2. Where the stipulations in a contract for the sale of real property are mutual, dependent and concurrent, an actual tender and demand by one party is necessary to put the other party in default, or to cut off his right to treat the agreement as still subsisting.

3. In all contracts for the sale of real property, where time of payment by the vendee is of the essence of the contract, the vendor is required to make tender and offer to comply with the stipulations to be performed by him before the vendee can be put in default.

4. A ground of forfeiture alleging that taxes for the year 1920 were delinquent on March 21, 1921, is not sustained by the evidence where it is shown that the first half of the taxes for 1920 had been paid, the remaining half not becoming delinquent until the fourth Monday in June, 1921, as provided by C. S., sec. 3234.

5. Forfeitures are not favored either in equity or in law, and provisions for forfeiture are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced.

6. Where a contract provided that the vendees should pay the interest on a mortgage "when payment is required by the mortgagee" an allegation that they refused to pay the interest is not supported by the evidence where it is not shown that a demand for payment of the interest was made by the mortgagee.

7. An assignment of error based upon the refusal of the court to give a proffered instruction cannot be considered where such instruction is not contained in the record.

8. Where several grounds of forfeiture are alleged in the complaint, the verdict on any one of which would entitle plaintiff to the relief prayed for, and a general verdict is rendered in favor of the plaintiff, an error in the admission of evidence or in the giving of instructions on any one of the grounds will necessitate a reversal for the reason that it cannot be ascertained upon which particular ground the jury found, and if only upon one it may be that such incompetent evidence or erroneous instructions resulted in such verdict.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.

Action in ejectment. Judgment for plaintiffs. Reversed.

Reversed and remanded. Costs awarded to appellants.

M. I Church and C. H. Hartson, for Appellants.

"Where by the terms of the contract the covenants for conveyance and payment of the purchase price are concurrent, mutual dependent, the vendor cannot rescind for nonpayment of the purchase money at the time stipulated unless he tenders a conveyance in accordance with the provisions of the contract and demands performance of the purchaser." (39 Cyc. 1376, notes; Marshall v. Gilster, 34 Idaho 420, 201 P. 711; Walsh v. Coghlan, 33 Idaho 115, 190 P. 252; Boone v. Templeman, 158 Cal. 290, 139 Am. St. 126, 110 P. 947; Kessler v. Pruitt, 14 Idaho 175, 93 P. 965; Martin v. Roberts, 127 Iowa 218, 102 N.W. 1126; Hill v. Grigsby, 35 Cal. 656; Reese v. Westfield, 56 Wash. 415, 105 P. 837, 28 L. R. A., N. S., 956; 29 Am. & Eng. Ency. of Law, 2d ed., pp. 686-689; Michigan Home Colony Co. v. Tabor, 141 F. 332, 72 C. C. A. 480; Coughran v. Bigelow, 164 U.S. 301, 17 S.Ct. 117, 41 L.Ed. 442; Ewing v. Wightman, 167 N.Y. 107, 60 N.E. 322; Todd v. State Bank of Edgewood, 182 Iowa 276, 165 N.W. 593; Sims v. Spelman, 209 Mo.App. 186, 232 S.W. 1071; 27 R. C. L., sec. 168, p. 454.)

"So far as the question of time is concerned, both parties, after the day provided for the consummation, may be considered equally in default; and neither can hold himself discharged from the obligation of complete performance until he has tendered performance on his own side, and demanded it of the other." (39 Cyc. 1377, and notes; Frink v. Thomas, 20 Ore. 265, 25 P. 717, 12 L. R. A. 239; Stein v. Waddell, 37 Wash. 634, 80 P. 184.)

"The default as to time may be waived by the conduct of the other party; as, by acts recognizing the contract as subsisting, by receiving payment, or by continuing the negotiations." (36 Cyc. 717, and notes; Papesh v. Wagnon, 29 Idaho 93, 157 P. 775; Hilton v. Hanson, 101 Me. 21, 62 A. 797; Titus v. Glenn Falls Ins. Co., 81 N.Y. 419; Claudius v. West End Amusement Co., 109 Mo.App. 346, 84 S.W. 354; Clark v. West, 193 N.Y. 349, 86 N.E. 5; Gray v. Perry, 25 Ore. 1, 34 P. 691, 38 P. 1091.)

"A forfeiture is a harsh remedy and will not be allowed except upon clear proof of the breach of the terms of the contract upon which such forfeiture shall be declared." (Harris v. Reed, 21 Idaho 364, 121 P. 780; King v. Seebeck, 20 Idaho 223, 118 P. 292; Cue v. Johnson, 73 Kan. 558, 85 P. 598; Forest City Ins. Co. v. Hardesty, 182 Ill. 39, 74 Am. St. 161, 55 N.E. 139; Knickerbockers Life Ins. Co. v. Norton, 96 U.S. 234, 24 L.Ed. 689; Knarston v. Manhattan Life Ins. Co., 124 Cal. 74, 56 P. 773; Robinson v. Cheney, 17 Neb. 673, 24 N.W. 378.)

"When a case is close in its facts, or when there is a conflict in the evidence on a vital point in the case, the rights of parties cannot be preserved unless the jury are accurately instructed. An instruction which has a tendency to, and probably did, mislead the jury when taken singly, is erroneous, even though the instructions, when taken together, embrace the law of the case." (1 Brickwood & Sackett, Instructions, sec. 191, and notes; 38 Cyc. 1602, and notes.)

"Instructions should not only be correct in law, but pertinent to the issues involved." (1 Brickwood & Sackett, Instructions, sec. 172, and notes; 40 Cyc. 252, and notes.)

Where vendor declares forfeiture when unauthorized, purchaser may treat such act as abandonment of contract by vendor, and sue for return of purchase money paid as money had and received. (Lemle v. Barry, 181 Cal. 6, 183 P. 148; Kerr v. Reed, 39 Cal.App. 11, 179 P. 399.)

J. C. Johnston and Gustave Kroeger, for Respondent.

The vendee under a contract of purchase, when sued in ejectment, must show and establish that he was not in default in performing the stipulations and provisions of the contract of purchase, and that he has fully performed them. (39 Cyc. 1894; Warvelle on Ejectment, p. 153, sec. 146; 39 Cyc. 1889; 27 R. C. L., sec. 375; Haile v. Smith, 128 Cal. 415, 60 P. 1032; Wolter v. Dixon, 29 Idaho 26, 157 P. 250; Wallace v. Maples, 79 Cal. 433, 21 P. 860; Hoffman v. Remnent, 72 Cal. 1, 12 P. 804; Crane v. United States National L. Ins. Co., 56 Tex. Civ. 406, 120 S.W. 1098; Gregg v. Phue, 1 Wall. (U.S.) 274, 17 L.Ed. 536; 19 C. J. 1084, 1085; Howard v. Hewitt, 139 Cal. 614, 73 P. 414; Connolly v. Hingley, 82 Cal. 642, 23 P. 273.)

"Where a party goes into possession under a contract of purchase, and makes default, he is liable to be turned out in an action of ejectment, and in such action by the vendor against the vendee, the latter can only defend his possession by showing a performance of the contract on his part, and that he is not in default." (Rose v. Perkins, 98 Mo. 253, 11 S.W. 622; Home Mfg. Co. v. Gough, 2 Ill.App. 447; Hall v. Winn, 60 Ga. 337; Knox v. Pratt & Burnett, 19 Fla. 817; Cleveland v. Aldridge, 94 Ark. 51, 125 S.W. 1016; Sowle v. Holdredge, 17 Ind. 236; Coughran v. Bieglow, 9 Utah 260, 34 P. 51; Grey v. Tubbs, 43 Cal. 359.)

"If the purchaser under an option contract, containing provisions making time the essence thereof, fails to make payment within the time therein specified or within the time to which such contract may have been definitely extended, his rights under the contract expire, and the owner of the property is under no further obligations either to accept the final payment or to give a deed." (Virginia Mining Co. v. Haeder, 32 Idaho 240, 181 P. 141; 39 Cyc., pp. 1340-1605; Johnson v. Sekor, 53 Wash. 205, 101 P. 829; McAdams v. Felkner, 140 Cal. 354, 73 P. 1064; Papesh v. Wagnon, 29 Idaho 94, 157 P. 775; Gervaise v. Brookins, 156 Cal. 110, 103 P. 332; Garvey v. Barkley, 56 Wash. 24, 104 P. 1108.)

"Where by the terms of a contract time is of the essence thereof, and the giving of a deed and payment of the purchase money are not mutual, concurrent and dependent covenants, the tender of a deed is not a condition precedent to the right of the vendor to rescind the contract for nonpayment of the purchase money or an instalment thereof at the time stipulated." (39 Cyc., pp. 1369-1376; De Bernardi v. McElroy, 110 Mo. 650-657, 19 S.W. 626; 39 Cyc. 1330; Beck v. Payne, 34 Idaho 408-413, 202 P. 569.)

"Where a vendee fails to perform an obligation that is a condition precedent in a contract of purchase of land, the vendor may rescind without tendering a deed." (Papesh v. Wagnon, 29 Idaho 93, 157 P. 775; Bruschi v. Quail Min. etc. Co., 147 Cal. 120, 81 P. 404; Freeman v. Griswold, 4 Cal. Unrep. 256, 34 P. 327; Hotalling v. Hotalling, 47 Barb. (N. Y.) 163; Devlin v. Williamson, 9 Watts (Pa.), 311.)

"A written agreement for valuable consideration, extending the time within which payment upon such contract may be made to a definite date, does not operate as a waiver of the provision in the contract making time the essence thereof." (Machold v. Farnan, 14 Idaho 258, 94 P. 170; Prairie Development Co. v. Leiberg, 15 Idaho...