Beck v. Payne
| Decision Date | 25 October 1921 |
| Citation | 202 P. 569,34 Idaho 408 |
| Parties | SIMON W. BECK, Appellant, v. HENRY PAYNE and FLORA C. PAYNE, Respondents |
| Court | Idaho Supreme Court |
CONTRACT-CONDITION PRECEDENT.
Language of contract in this case examined and found to clearly show that agreement to discharge certain mortgage is a condition precedent to right to demand deed.
APPEAL from the District Court of the Fourth Judicial District, for Minidoka County. Hon. H. F. Ensign, Judge.
Action for specific performance of contract for sale of land. From order sustaining demurrer to amended complaint, plaintiff appeals. Affirmed.
Affirmed. Costs awarded to respondents. Petition for rehearing denied.
Dampier & Codding and Homer C. Mills, for Appellant.
Time was not of the essence of this agreement, with reference to the obtaining of the release of the mortgage in question. (Steele v. Branch, 40 Cal. 3.) The alleged condition to be performed by the plaintiff with reference to the obtaining of the release of said mortgage was a covenant, and not a condition precedent to demanding a conveyance; and courts are disinclined to construe the stipulations of a contract as conditions precedent, unless compelled to do so by the language of the contract plainly expressed, especially where the result would be to work a forfeiture, which the law will always endeavor to prevent.
Walters, Hodgin & Bailey and S. T. Lowe, for Respondents.
The releasing of the mortgage by the appellant was a condition precedent to his right to compel specific performance of the contract. (Papesh v. Wagnon, 29 Idaho 93, 157 P. 775.)
Where time has been made not only of the essence of the contract but a condition precedent to the vendee's right to the consummation of the contract, and the contract contains a provision for forfeiture, specific performance will ordinarily not be granted at the suit of a vendee, who has failed to make payments within the time specified. (Milnor v. Willard, 34 Ill. 38; Wells v. Smith, 7 Paige (N. Y.), 22, 31 Am. Dec. 274; Cushing v. Knight, 46 Can. S.Ct. 555; Labelle v. O'Connor, 15 Ont. L. Rep. 519.)
Where promises which form the consideration for each other are concurrent or dependent, the failure of one party to perform will discharge the other, and one cannot maintain an action against the other without showing performance, on his part, unless such performance has been excused. (13 C. J. 627, sec. 694, and cases cited.)
This is an action brought by appellant for the specific performance of a contract for the sale of certain land situated in Minidoka county. The action is based upon a written contract entered into on October 14, 1916, by which respondents agreed to sell and appellant agreed to buy the land described in said contract. The consideration of $ 20,000 was to be paid as follows: $ 1,000 cash at the time of the execution of the contract; $ 4,000 on or before December 1, 1916; $ 5,000 on or before January 1, 1917; and $ 2,000 in bankable paper payable on or before December 1, 1918; the appellant to assume and pay a mortgage of $ 8,000, together with all interest accruing thereon from the first day of December until paid, which said mortgage was held by the Home Investment and Savings Company against the land which was the subject of the contract, and also against an additional 80 acres of land owned by respondents.
The contract contains the following provisions:
"The mortgage hereinbefore agreed to be assumed and paid by the said party of the second part in addition to covering the land hereinbefore described and which the said parties of the first part have agreed to sell and convey unto the said party of the second part covers the East half of the Southeast Quarter (E. 1/2 SE. 1/4) of Section Thirty-two (32) . . . . which said land is now owned by the said parties of the first part, and the said party of the second part hereby covenants and agrees that he will release or procure to be released from the said mortgage the said East Half of the Southeast Quarter (E. 1/2 SE. 1/4) of Section Thirty-two (32) . . . . provided, however, that it shall not be considered a breach of this contract if the said party of the second part releases the said mortgage in so far as it relates to the land retained by the parties of the first part prior to the first day of December, 1916, but thru no fault of the party of the second part the release thereof is delayed for a period longer than the first day of December, 1916. . . .
"The parties of the first part will on the first day of January, 1917, or as soon thereafter as the purchase price hereinbefore specified, excepting the sum of Two thousand ($ 2,000.00), shall have been paid and the East half of the Southeast Quarter (E. 1/2 SE. 1/4) of Section Thirty-two (32) . . . . released from the said mortgage hereinbefore described, make, execute and deliver to the said party of the second part a good and sufficient deed conveying to the said party of the second part title in fee simple, unconditional, free and clear of all encumbrances," excepting certain liens mentioned in the contract.
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