Cummings v. Rogers

• Decision Date: 03 January 1887
• Citation: 36 Minn. 317
• Parties: REBECCA A. CUMMINGS <I>vs.</I> EDWARD G. ROGERS and another.
• Court: Minnesota Supreme Court

Page 317

36 Minn. 317

REBECCA A. CUMMINGSvs.

EDWARD G. ROGERS and another.

Supreme Court of Minnesota.

January 3, 1887.

Appeal by defendants from an order of the district court for Ramsey county, refusing a new trial after a trial before Brill, J., without a jury.

Henry J. Horn and Emerson Hadley, for appellants.

J. M. Gilman and M. D. Munn, for respondent.

BERRY, J.

1. The first error assigned, viz., the failure of the trial court to make four certain findings of fact, is disposed of by the rule which requires application to be made (as it was not in this case) to the trial court for such additional or more specific findings as are desired and deemed to be warranted by the evidence. Smith v. Pendergast, 26 Minn. 318, (3 N. W. Rep. 978;) Bradbury v. Bedbury, 31 Minn. 163, (16 N. W. Rep. 854;) Hewitt v. Blumenkranz, 33 Minn. 417, (23 N. W. Rep. 858.)

2. Upon a careful perusal of the record, we are of opinion that the findings of fact cannot be said to be unsupported by the evidence. This reduces the case to the question whether the findings furnish a sufficient basis for the conclusions of law. This is an action for the cancellation of a written contract to sell certain land, the defendants in their answer praying specific performance. The contract, made October 25, 1884, shows a sale of the land by plaintiff, the owner thereof, to defendants, for $9,600, as follows: $200 earnest money, paid down; $4,600 cash on delivery of deed; and balance in two instalments. If the title was not good, the contract was to be void, and the $200 refunded; but if the title was good, and was not taken, the $200 to be forfeited. Time is made an essential condition, in that, if the defendants failed to pay the $4,600 on or before 15 days after date of contract, or failed to perform the agreement as to the deferred instalments, then all moneys paid were to be forfeited, and the plaintiff discharged from any liability under the contract, "which shall immediately become null and void," at plaintiff's option.

The court finds that when the contract was entered into plaintiff was, and ever since has been, owner in fee-simple of the land; that, some days prior to the expiration of the 15 days mentioned, plaintiff executed a proper deed of conveyance to defendants, and was ready to deliver the same and consummate the contract, of which facts defendants were notified before the 15 days expired. Defendants, having been advised that plaintiff's title was not good, were for that reason unwilling and not ready, within the 15 days, to receive the deed, make the payment, and give the securities for the deferred instalments, as provided in the contract, unless plaintiff would procure deeds from other parties, deemed necessary to perfect the title. Plaintiff was ready and willing to deliver the deed, upon defendants' performance, after the expiration of the 15 days, and down to November 25th, as defendants had notice; while, on account of the imagined defect of title, defendants were not ready to accept the deed, and carry out the contract on their part, until the latter part of February, 1885. The plaintiff never made any formal tender to defendants, nor...