Burroughs v. Jones

• Court: Mississippi Supreme Court
• Writing for the Court: TERRAL, J.
• Citation: Burroughs v. Jones, 79 Miss. 214, 30 So. 605 (Miss. 1901)
• Decision Date: 21 October 1901
• Parties: NELSON T. BURROUGHS v. LEVIN H. JONES ET AL

30 So. 605

79 Miss. 214

NELSON T. BURROUGHS v. LEVIN H. JONES ET AL

Supreme Court of Mississippi

October 21, 1901

FROM the chancery court of Sunflower county. HON. A. Mc. C KIMBROUGH, Chancellor.

Burroughs appellant, was the complainant in the court below; Jones and others, appellees, were defendants there. The suit was once before in the supreme court and is reported. Burroughs v Jones, 78 Miss. 235 (28 So. 944). The facts of the case were fully stated by the court in the opinion then delivered,^[*] to which reference is made. After the remand of the case to the court below, the suit was consolidated with the case of Craig v. Burroughs, mentioned in the former opinion, and in this way all proper parties to this suit were brought before the court. The other facts are stated in the following opinion of the court, or may be readily inferred therefrom.

Affirmed.

Johnson & Chapman, for appellant.

By express stipulation, time is made the essence of this contract. The payments are to be made at the times they become due. A failure to make any one of these payments punctually at the appointed time gives Burroughs the right to treat the contract as void, and annul it. From the time any payment becomes due and is not paid, Craig holds merely at the will of Burroughs. After a payment becomes past due, Craig can only save his rights under the contract by making the payment before Burroughs notifies him of rescission. As to whether the contract is rescinded or not after any payment is past due and not paid, is entirely in the hands of Burroughs. It is so written in the face of the paper. The plain language is susceptible of no other construction. After allowing the time for payment to pass without making it, Craig, upon notification of cancellation by Burroughs, loses all moneys paid or expended in improvements, and the title revests in Burroughs as effectually as if no contract of sale had ever been made.

A delay in cancellation is but grace extended. Unless there are additional stipulations between the parties, after failure to make any of the payments as security, Craig can only acquire rights under his contract by making tender of the money due with stipulated interest before Burroughs has elected to exercise his right of cancellation plainly given him in the instrument.

The agreement is to be construed according to the intent of the parties, as this may be gathered within its " four corners." A construction limiting Burroughs' right to rescind to the very date of Craig's failure to pay, was never contemplated. There is no sentence, clause or condition in the paper so providing in terms or reasonably susceptible of such a construction. 1 Pomeroy's Eq., sec. 455; Notes in 6 L. R. A., 242; Moak v. Bryant, 51 Miss. 564; Johnson, v. Tuggle, 27 Miss. 845.

The contract was annulled and all rights of Craig under it were divested. On February 21, 1899, a written notice was mailed to Craig that the contract would be canceled and declared null unless he complied with its terms within three days from the date of the notice. It must not be forgotten that, at the date of this notice, the last payment had not become due. Burroughs, at this time, was under no obligation to tender a deed. His contract was to make a deed upon the payment of all the purchase money. At this time, to put Craig in default, he had only to demand payment and give notice that, unless made, the contract would be terminated. This notice was duly written and mailed to Craig. Craig admits receiving the notice, but states that the date of the receipt was after the three days allowed had elapsed. His plain duty was to comply within a reasonable time after he had received the notice.

Is not Burroughs entitled to the redress he seeks, to have the trust deed canceled, as a cloud on his title, and the sale under it perpetually enjoined. High on Injunctions, sec. 372 et seq. Surely damages were wrongfully adjudged on the injunction bond.

Baker, & Moody, for appellees.

The contract in controversy provides that, for $ 550, of which $ 50 was paid cash, and the remainder evidenced by four notes of $ 125 each, due October 25, 1896, 1897, 1898 and 1899, respectively, Burroughs agreed to convey the land in controversy to Craig when said notes should be paid.

By the terms of the contract in controversy, Craig was bound to the performance of many and various acts, the violation of any one or more of which gave Burroughs the right to declare the contract null and void. It is not claimed, however, that Craig failed to perform any of the acts required of him by the terms of the contract, except the failure to pay the notes due October 25, 1897 and 1898, respectively. The failure by Craig to pay those notes did not give Burroughs the right to declare the contract void on February 21, 1899. The court will observe that the times of payments were made the essence of the contract, and that it is provided that the failure to make any of the payments at the time they fell due, i. e., "punctually and upon the strict terms and times above limited," Burroughs should have the right to do one of two things. If the payments were not made, the first question that naturally presents itself is, at what time shall Burroughs make this election? As before stated, the time is made the essence of the contract, and Craig is bound to make the payments punctually and upon the strict terms and times above limited. There is no delay provided for Craig. He must make the payments promptly when due. If he does not, the consequence is that Burroughs is given the right to declare the contract null and void, as it may please him. As Craig is bound to make the payments punctually, why is not Burroughs required to make the election promptly?

The contract is a hard one. Craig, not only forfeits the land but all payments made, as well, together with the right to recover for improvements made. Craig forfeits all. All courts of equity...