Bailey v. Savage, 13728
| Citation | 236 S.E.2d 203,160 W.Va. 523 |
| Decision Date | 12 July 1977 |
| Docket Number | No. 13728,13728 |
| Parties | William BAILEY and Mary E. Bailey v. Kenneth E. SAVAGE. |
| Court | Supreme Court of West Virginia |
Syllabus by the Court
1. Cancellation of a land sales contract will not be granted by the Court because of a partial failure of consideration, where there is no offer to restore the status quo and where the grounds for cancellation are otherwise insubstantial.
2. Time for compliance is generally not of the essence of a contract for the sale and purchase of land. A reasonable time is generally implied. If the parties would make time of the essence, they should so stipulate in the contract. And even when such contract does make time of the essence, it may be waived by indulgence or subsequent contract of the parties. Collins v. Thomas, 87 W.Va. 597, 105 S.E. 897 (1921).
3. "In equity the finding of a trial chancellor will not be disturbed on appeal, unless clearly wrong or against the plain preponderance of the evidence." Syllabus, point ten, Mullens v. Frazer, 134 W.Va. 409, 59 S.E.2d 694 (1950).
James D. Terry, Morgantown, for appellants.
Virginia Jackson Hopkins, Legal Aid, Morgantown, for appellee.
Plaintiffs, William Bailey and Mary E. Bailey, appeal to the Court for reversal of the order of the Circuit Court of Preston County, entered on November 20, 1975, which denied to them the prayer of their complaint for cancellation of a land sales contract, dated July 15, 1971, made by them, as vendors, with the defendant, Kenneth E. Savage, as purchaser, and for their immediate recovery of possession of the land involved. They base their appeal on two contentions: (1) that the trial court erred in its ruling "that it would be inequitable to enforce this contract when under the law an equitable defense cannot be asserted", and (2) that, although defendant was delinquent in making installment payments under the contract, the court erred in holding that his "noncompliance with the contract . . . was of no consequence when actually time was of the essence in the contract." *
The land sales contract involves a parcel of land, with a dwelling house thereon, containing 2.5 to 3 acres situate in Kingwood District of Preston County, together with an access road right-of-way to the county road over, across and upon adjacent land owned and retained by plaintiffs. The contract purchase price for the land was $2,000, payable in 40 installments of $50 each on the 16th day of each successive month until the total indebtedness was paid, without interest. The purchaser was to keep the premises in repair and to keep the house insured with a loss clause providing for payment of any insurance to William Bailey as his interest may appear. Purchaser was privileged to reside on and occupy the property at all times during the contract. Vendors were to deliver to purchaser a general warranty deed to the property within 30 days following payment of the indebtedness in full. The fifth paragraph of the contract provided:
"If the PURCHASER shall neglect to make any payment when due or neglect to do or perform any matter or thing herein agreed to be done and performed by him, and shall remain in default for a period of five (5) days after written notice from the VENDORS calling attention to such default, then the VENDORS may declare this contract terminated and cancelled and take possession of said property, retaining as rent and liquidated damages all payments theretofore made to them by the PURCHASER."
The defendant purchaser lost his job at the Sheidow Bronze plant where he had been employed for some six and one-half years. He informed plaintiffs that he was unemployed and would be slow in making the monthly payments on the property until his unemployment compensation was available. He failed to make the payments on the 16th day of June, July and August, 1974. He was given written notice, served by the sheriff's office on August 20, 1974, that unless the three payments totaling $150 were paid within five days, the land purchase contract of July 15, 1971, would be terminated and he would be required to surrender the premises and improvements thereon. At that time it appears that he had paid $1,750 on the contract and was yet owing a total of $250 of the $2,000 purchase price. By August 28, 1974, he obtained $250 and went to plaintiff William Bailey with the money. Mr. Bailey told him the matter had been turned over to an attorney to whom the defendant purchaser promptly went and with whom he lodged the $250 in cash for payment to plaintiff Bailey. In the meantime, Mr. Bailey had commenced unlawful detainer proceedings against the defendant purchaser in a justice of the peace court which resulted in a judgment adverse to the plaintiff without an appeal being effected thereon. The record discloses the development of ill feelings and lack of productive communications between the vendors and purchaser.
Plaintiffs commenced their action in the Circuit Court of Preston County for cancellation of the contract and recovery of the property on November 27, 1974. The prayer of the complaint is in the following language:
"WHEREFORE, by reason of the provisions of said real estate sales contract and defendant's default therein, plaintiffs demand judgment against defendant declaring said real estate contract cancelled and for further judgment granting plaintiffs the right to retain the installments made and for further judgment, giving plaintiffs right to immediate possession of the premises and a writ of possession for said purpose."
Defendant filed his answer and counterclaim, asserting his substantial compliance with the contract, his favorable judgment in the justice of the peace action, his significant improvements on the property, and, since his remedies at law would be inadequate and plaintiffs would be unjustly enriched if the contract was cancelled and they recovered the property, his prayer for specific performance of the contract. Plaintiffs replied to the counterclaim.
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