Alk v. Lanini, 80-2842-NJ-2

• Decision Date: 29 December 1982
• Docket Number: No. 80-2842-NJ-2,80-2842-NJ-2
• Parties: Howard N. ALK and Joan Alk, Appellants, v. Henry E. LANINI and Kathryn L. Lanini, Respondents. ; CA A23633.
• Court: Oregon Court of Appeals

Page 367

656 P.2d 367

61 Or.App. 158

Howard N. ALK and Joan Alk, Appellants, v. Henry E. LANINI and Kathryn L. Lanini, Respondents.

No. 80-2842-NJ-2; CA A23633.

Court of Appeals of Oregon.

Argued and Submitted Oct. 18, 1982.

Decided Dec. 29, 1982.

Walter D. Nunley, Medford, argued the cause and filed the brief for appellants.

William V. Deatherage, Medford, argued the cause for respondents. On the brief were John B. Rogers and Frohnmayer, Deatherage, deSchweinitz & Eads, Medford.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

Plaintiffs appeal from a trial court decree denying them specific performance of an earnest money agreement on the ground that they failed to make a timely tender of the down payment. We reverse, because defendants' prior repudiation of the contract relieved plaintiffs of the duty to tender the money.

On October 14, 1978, plaintiff-purchasers and defendant-sellers entered into an agreement for the sale of 293 acres in Jackson County. The Deposit Receipt and Agreement of Sale stated that closing was to occur on December 15, 1978, and required sellers, after buyers' performance, to "deliver to buyer * * * a proper deed with * * * marketable title * * * free from all encumbrances * * *." The agreement also contained a time of the essence clause.

When defendants received the preliminary title report, they discovered for the first time that the title was clouded and not marketable. They retained an attorney and instructed him to proceed with a quiet title suit. When it became apparent that the title could not be cleared by December 15, 1978, plaintiffs and defendants signed an agreement to extend the closing date to June 15, 1979. In May, 1979, defendants terminated the first attorney's services and engaged another to proceed with the quiet title action. By this time, it was obvious that defendants' title would not be cleared in time for closing to occur on schedule. On June 6, 1979, the parties signed a second agreement to extend closing until October 15, 1979.

By late September, plaintiffs had concluded that the quiet title action probably would not be completed in time for the October 15 closing, so they sought yet another extension, this time until October, 1980. Plaintiffs signed such an extension agreement on September 26, 1979, while they were at a social gathering with defendants. Defendants refused to sign the agreement at that time, but plaintiffs understood their refusal to be solely because they considered a business transaction to be inappropriate at a social gathering. Other conversations at that gathering concerned plaintiffs' plans for the property. Defendants did not suggest that the parties no longer had a "deal." ¹

On March 12, 1980, a decree was finally filed quieting title in defendants. Plaintiffs' attorney then attempted to proceed with the transaction, but he was informed by a letter from defendants' attorney that defendants no longer wished to sell. In August, after some additional correspondence between the two attorneys, plaintiffs paid the agreed down payment into escrow and filed this suit for specific performance. The trial judge found that defendants' obligation to sell the property to plaintiffs lasted at least through the time that the quiet title suit concluded, but he denied specific performance because he found that plaintiffs had not made a timely tender of their down payment. This appeal followed.

Defendants argue first that, because time was of the essence of the contract and because the parties had agreed to extend the closing only until October 15, 1979, the contract lapsed on that date, releasing defendants from all further obligations. We disagree.

As a general rule, a party to a contract may waive performance of any provision included for his benefit. Widing et al v. Jensen, Real Estate Com., 231 Or. 541, 547, 373 P.2d 661 (1962); Cross v. Campbell, 173 Or. 477, 493, 146 P.2d 83 (1944). A provision making time of the essence may be waived either expressly or impliedly. Widing et al v. Jensen, Real Estate Com., supra; Walker v. Feiring, 53 Or.App. 433, 437, 632 P.2d 1270 (1981); Spaulding v. McCaige, 47 Or.App. 129, 134, 614 P.2d 594 (1980). By defendants' own admission, the time of the essence clause was included in the earnest money agreement for the benefit of both parties. It could therefore be waived by either party with regard to the timing of the other party's performance. ² The earnest money agreement initially required defendants to deliver marketable title at the closing on December 15, 1978. With respect to defendants' performance, the clause was for plaintiffs' benefit, and plaintiffs' three requests for extensions of the closing date operated as waivers of the provision.

Defendants' argument must also fail because a party to a contract cannot take advantage of his own failure to perform, Hansen v. Bussman, 287 Or. 527, 534, 601 P.2d 794 (1979); Public Market Co. v. Portland, 171 Or. 522, 588, 130 P.2d 624, 522, 138 P.2d 916 (1942); see also 1 Corbin Contracts § 319, at 112-14 (1950), and defendants were responsible, at least in part, for the fact that the transaction did not close on schedule.

It did not close on the specified dates because defendants were unable to deliver marketable title. We realize that defendants had only a limited amount of control over the quiet title action. They did, however, have power over the actions of their attorney, and we do not think that they used that power as they could have to expedite resolution of the title question. When defendants hired the second attorney in June, 1979, he offered them a choice: he could put his other projects on the "back burner" and give defendants' quiet title action "full priority," charging them accordingly, or he could proceed with the quiet title work when he "had spare time" to do the research on occasions when other business brought him to the courthouse in Medford. He testified that defendants chose the latter arrangement, because "nobody was really in a big hurry about it and [defendants] wanted it done as cheaply as we could get it done. * * * [T]hey didn't want to spend * * * any more than they had to." At the time defendants made this decision, they knew from experience that their quiet title action could be time consuming and that the October 15 closing date was rapidly approaching. Nonetheless, they chose the slower alternative. By doing so, defendants became a cause, although not the sole cause, for the failure of performance on October 15, 1979. They therefore cannot rely on the passage of that date to release them from their agreement.

For both reasons discussed above, plaintiffs are not foreclosed from the remedy of specific performance simply because the agreed closing dates passed without performance by either party. We must therefore determine whether the...