Boswell v. United States

• Decision Date: 04 November 1941
• Docket Number: No. 10027.,10027.
• Citation: 123 F.2d 213
• Parties: BOSWELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

123 F.2d 213 (1941)

BOSWELL v. UNITED STATES.

No. 10027.

Circuit Court of Appeals, Fifth Circuit.

November 4, 1941.

Ezra E. Phillips, of Atlanta, Ga., for appellant.

T. Hoyt Davis, U. S. Atty., of Macon, Ga., H. G. Rawls, Sp. Atty., Dept. of Justice, of Albany, Ga., and John P. Hearne, Atty., Dept. of Justice, of Washington, D. C., for appellee.

Before FOSTER, HUTCHESON and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was for enforcement of a contract for the sale of land and for an injunction against timber cutting. The claim was that though the land was bound to the United States under a valid contract of sale, the defendant Yundt had, in an endeavor to repudiate the contract, quitclaimed the land to Boswell who was attempting to use the land as his own.

The defense was that the contract had been breached by a flagrant and unreasonable delay in performance, and the government had thereby lost all right to the land.

The facts are brief and without dispute. (1) On March 28, 1939, defendant Yundt gave plaintiff a six month option to purchase the land for $2,100. The provisions material here are, (a) that Yundt was the owner of the land and would convey a valid title; (b) that should the United States determine that the title should be acquired by condemnation and not by purchase, $2,100 should be the agreed award; (c) that plaintiff should have a reasonable time after the acceptance of the option within which to secure an abstract or certificate of title and have it examined. (2) On September 22, 1939, plaintiff accepted the option. (3) On October 24, 1939, Mr. Hampton, the officer in charge, for the United States, of the acquisition of the land, ordered Faust, a competent abstractor, to prepare an abstract, and from time to time thereafter, he inquired as to the abstractor's progress. (4) Between September 22, 1939 and October 18, 1940, Yundt frequently complained, and inquired of Hampton as to the cause, of the delay, especially because Hampton had told him he would have to pay the taxes until he made his deed, but it was not until the last-named date that he did anything about the delay or gave any intimation that because thereof, he claimed a breach of the contract or was of a mind to denounce it. (5) On that date, Yundt said to Hampton: "I am going to cut this thing off, it has now run more than a year since you people said you were going to buy the property and I have got all of this risk all of this time. Either pay for it or we stop it. I think you have waited too long. I will wait until the end of the month." And Hampton suggested, "You know the abstractor. Won't you ask him about this situation?" Whereupon Yundt did call Faust. Faust told him he would have the papers in by the end of the month and Yundt said to Faust: "Now if they are not in here by the end of the month, I am going to, on my side, say this thing is off." Thereafter Yundt again talked to Hampton, telling him that Faust had said he would have the papers in by the end of the month and telling him too, that the contract had run too long, that he was going to cut it off definitely, that he was tired of it.

Also on October 18th, defendant Boswell, by letter, endeavored to obtain a release of the contract so that he could buy from Yundt at the option price, Yundt having made the condition that he be released. On November 12th, Hampton wrote Boswell that the contract would not be released and that Mr. Yundt had on November 9th advised that he was not interested in selling the land to anyone other than the United States and would seriously object to cancellation of the option by the United States. Thereafter Boswell withdrew his offer to purchase at the option price. On November 12th, the abstract was delivered to Hampton and thereafter in ordinary course the title was examined and found good, and on December 9th, the government standard form voucher for the purchase price was sent to defendant Yundt.

In the meantime however, on November 26th, Yundt, in a registered letter to plaintiff, which made no reference to the October 18th conversation or the November 1st deadline he had set in it, but fixed the deadline as of November 26th, notified plaintiff that he considered that the contract had been terminated by unreasonable delay and was of no further force or effect. On December 23d, defendant Boswell, with full knowledge that plaintiff had on December 5th denied Yundt's right to call the trade off, and that it was contending that the contract was in full force and effect, obtained a...