Berding v. Northwestern Securities Co.

• Decision Date: 04 December 1922
• Parties: NATALIE V. BERDING, Respondent, v. NORTHWESTERN SECURITIES COMPANY, a Corporation, and J. W. SLICK and W. B. SLICK, Appellants
• Court: Idaho Supreme Court

211 P. 62

36 Idaho 384

NATALIE V. BERDING, Respondent, v. NORTHWESTERN SECURITIES COMPANY, a Corporation, and J. W. SLICK and W. B. SLICK, Appellants

Supreme Court of Idaho

December 4, 1922

PLEADING AND PRACTICE-NECESSITY FOR FINDINGS-VENDOR AND PURCHASER - FORFEITURE - TENDER - OFFER TO DO EQUITY - STRICT FORECLOSURE.

1. The court must make findings upon all the material issues raised by the pleadings. It is not error to fail to make findings upon immaterial issues.

2. Where a contract between vendor and purchaser provides that time is of the essence of the contract and that upon failure to make any payment the contract shall become immediately null and void, and all payments made shall be retained as stipulated damages, where the purchaser has failed to make payment at the time required by the contract but thereafter the vendor accepts other payments under the contract, the vendor cannot thereafter declare a forfeiture for such failure without giving notice to the purchaser of the intention so to do, and also giving a reasonable time within which to make such payment.

3. In an action by a purchaser to enforce the provisions of a contract for the purchase of real estate, the failure of the court to find as a fact whether or not the vendor had given notice that the contract was forfeited which fact is material in order to determine whether or not a tender upon the maturity of the contract is excused, does not require a reversal of the case in the absence of an offer by the purchaser in his pleadings to pay the full amount due.

4. Sixty days was a reasonable time within which to require payment in a decree of strict foreclosure under the circumstances disclosed in the case at bar.

5. The judgment of the trial court as to the amount due on a contract of purchase and sale will not be disturbed where there is conflicting testimony, and it does not clearly appear that the court committed error in finding the amount due.

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. B. S. Varian, Judge.

Action to quiet title and forfeiture. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

Hawley & Hawley, for Appellant Northwestern Securities Co.

W. C Bicknell, for Appellants Slick Brothers.

Where a trial court fails to make specific findings upon material issues made by the pleadings and in support of which evidence was introduced, the decree must be set aside. (Carson v Thews, 2 Idaho 176, 9 P. 605; Standley v. Flint, 10 Idaho 629, 79 P. 815; Berlin Machine Co. v. Dehlbom, 29 Idaho 494, 160 P. 746; American Mining Co., Ltd., v. Trask, 28 Idaho 642, 156 P. 1136; Jensen v. Bumgarner, 25 Idaho 355, 137 P. 529; Lorenzi v. Star Market Co., 19 Idaho 674, 115 P. 490, 35 L. R. A., N. S., 1142; Wood v. Broderson, 12 Idaho 190, 85 P. 490; Sterrett v. Sweeney, 15 Idaho 416, 98 P. 416, 20 L. R. A., N. S., 936; Brown v. Macey, 13 Idaho 451, 90 P. 339; Olympia Mining Co. v. Kerns, 13 Idaho 514, 91 P. 92; Uhrlaub v. McMahon, 15 Idaho 346, 97 P. 784.)

A vendor under an instalment contract cannot accept payments on instalments and then declare a forfeiture for failure to pay such instalments on time. (39 Cyc., "Vendor and Purchaser," pp. 1610, 1611, and cases cited; Maffett v. Oregon & C. R. Co., 46 Ore. 443, 80 P. 489; Van Dyke v. Cole, 81 Vt. 379, 70 A. 593; Boone v. Templeman, 158 Cal. 290, 139 Am. St. 126, 110 P. 947; 29 Am. & Eng. Ency. 685, and cases cited.)

Isham N. Smith and R. E. Haynes, for Respondent.

A general negative finding is sufficient to sustain a decree of dismissal or a decree disallowing an equity. (38 Cyc. 1976.)

No findings are required on admitted facts. (38 Cyc. 1973.)

While parties to a contract may so act that tender of performance will be excused as between them, yet when litigation arises involving a contract which makes time an essential ingredient, and they are before a court of equity, a party must make an offer to do equity as a basis for relief from the court. (Pomeroy on Specific Performance, 2d ed., sec. 362; Prairie Dev. Co. v. Leiberg, 15 Idaho 379, 98 P. 610; Kelsey v. Crowther, 162 U.S. 404, 16 S.Ct. 808, 40 L.Ed. 1017; Smith v. Krall, 9 Idaho 535, 75 P. 263; 38 Cyc. 169.)

A judgment will not be reversed for error which does not affect the substantial rights of the parties. (Smith v. Ellis, 7 Idaho 196, 61 P. 695.)

"There is no necessity for findings upon immaterial issues, nor upon facts alleged in the complaint and admitted by the answer." (Fouch v. Bates, 18 Idaho 374, 110 P. 265.)

Findings of fact should be liberally construed in support of a judgment. (Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; Fehr v. Haworth, 33 Idaho 96, 190 P. 248.)

RICE, C. J. Budge, McCarthy, Dunn and Lee, JJ., concur.

OPINION

RICE, C. J.

On the 20th day of December, 1914, respondent Natalie V. Berding entered into a written contract with J. W. Slick and W. B. Slick, who will be hereinafter referred to as the Slick Brothers, for the sale of certain real estate and personal property then situated in Canyon county, now in Payette county. The real estate was encumbered by a mortgage of $ 8,000, the payment of which the Slick Brothers assumed in consideration of the right granted to them to dispose of so much of the personal property as they desired, on such terms as they might consider to their advantage. Slick Brothers were put into possession of the real estate, in consideration of which they agreed to pay the sum of $ 1,800 for each of the years 1915, 1916, 1917, 1918 and 1919, and also the taxes assessed against the property during such years. They further agreed to keep the buildings and contents insured for the benefit of respondent. It was further agreed that respondent would place in escrow a good and sufficient warranty deed, conveying the premises direct to Slick Brothers upon the payment of the total sum of $ 40,000 on or before the 1st day of January, 1920. By this contract, however, the Slick Brothers did not agree to purchase the real estate, nor to pay the purchase price. During the year 1916, the $ 8,000 mortgage referred to, running to the Union Central Life Insurance Company, was canceled and a new mortgage upon the premises was executed by respondent and Slick Brothers for $ 15,000. Slick Brothers received the benefit of the $ 7,000 increase, and assumed payment of the new mortgage.

On the 23d day of July, 1919, respondent entered into an agreement in writing with appellant Northwestern Securities Company, a corporation, hereinafter referred to as the company, which contained the following provision: "That for and in consideration of the sum of $ 29,000 . . . . the party of the first part [respondent] does hereby give, grant, bargain sell and convey unto the party of the second part, all her right, title and interest, including her vendor's lien, in and to certain tracts of land." (Describing the premises the same as described in the contract with Slick Brothers.) By this agreement respondent also sold and assigned all her right, title and interest in and to the contract of sale, so called, between herself and the Slick Brothers, together with the property described therein, real, personal and mixed. By the terms of this agreement, appellant company agreed to buy the property, and respondent's interest in the Slick Brothers' contract, for the purchase price mentioned. The agreement recited the existence of the $ 15,000 mortgage on the premises, and by its terms the company bound itself to pay the same, together with interest thereon, and to save and hold respondent harmless from any and all liability under the note and mortgage and for any costs and disbursements which might legally be assessed thereon. The company further covenanted and agreed to pay all taxes and assessments upon the property as the same might become due upon the lands described in the agreement, so long as any deferred payments were unpaid. It was agreed between the company and respondent that the purchase price should be paid in the following manner: $ 6,000 within ten days after the execution of the agreement, and $ 23,000 on the 1st day of January, 1920. It was further provided in the contract that if the company should default in its payments or any of the covenants agreed by it to be kept and performed, "then and in that event this contract and agreement between the respective parties hereto and all assignments, deeds and transfers of every kind and character made by the party of the first part [respondent] to the party of the second part or its order, shall become null and void and without force and effect and all payments made by the party of the second part to the party of the first part under the terms of this agreement shall be retained by the party of the first part as stipulated damages arising out of the default of the party of the second part and out of the breach of this, its contract, with the party of the first part. . . . It is understood and agreed between the respective parties hereto that time is of the essence of this contract and agreement." In addition to the contract with the company, and at about the same time, respondent executed a warranty deed conveying to the company the identical land described in her said contract, which deed, the court found, was left with the company in escrow with the understanding that it should not be recorded until final payment in the sum of $ 29,000 had been made thereon by the company, and then to be contingent on and subject to all rights of Slick Brothers in the premises; that the deed was recorded with the recorder of Payette county on August 8, 1919, by George W. Estes, treasurer of the company, without right or authority at a time when the company had not carried out the...