Dillon v. Ringleman

• Decision Date: 08 February 1916
• Docket Number: Case Number: 6160
• Citation: 55 Okla. 331,1916 OK 172,155 P. 563
• Court: Oklahoma Supreme Court
• Parties: DILLON v. RINGLEMAN.

1916 OK 172

155 P. 563

55 Okla. 331

DILLON v. RINGLEMAN.

Case Number: 6160

Supreme Court of Oklahoma

Decided: February 8, 1916

Syllabus

¶0 1. SPECIFIC PERFORMANCE--Enforcement of Land Sale Contract--Action by Vendor. Specific performance will lie at the instance of the vendor to enforce a contract for the purchase of land, where he alleges and makes tender of a valid deed therefor, since the decree will compel the acceptance of the deed as well as the payment of money.

2. DAMAGES--Construction--Penalty--Option. Where the performance of a thing is secured by a penalty, the doing of the thing, and not the payment of the penalty, is considered the substance of the transaction. The parties may, however, if they choose, stipulate that the obligor shall have the option either to do the thing or pay the penalty; but, as such a provision always gives one party a clear advantage over the other, such a construction is not given unless it is clear, from the face of the instrument, that such was the intention of the parties.

3. CONTRACTS--Breach--Liquidated Damages -- Defense -- Proof. In all cases where a party relies on the payment of liquidated damages as a discharge, it must clearly appear that they were to be paid and received absolutely in lieu of performance.

4. DAMAGES-- Forfeitures--Statutes. The statutes of Oklahoma expressly prohibit forfeitures except where it would be impracticable or extremely difficult to fix the actual damages.

5. SPECIFIC PERFORMANCE--Land Sale Contract-- Construction--Alternative Nature. Contract examined, and held not to be an alternative contract.

6. SAME--Contract--Construction--Time as of Essence. Time is never considered as of the essence of a contract, unless by its terms expressly so provided.

7. SAME. Contract examined, and held that time was not of the essence thereof.

J. P. Wishard, Seymour Foose, and R. C. Brown, for plaintiff in error.

C. F. Dyer, for defendant in error.

MATHEWS, C.

¶1 The parties will be designated as in the trial court. This is an action for specific performance instituted by a vendor against the vendee. As a preliminary to this action, the parties hereto executed the following contract:

"This contract, made and entered into this 1st day of February, 1911, by and between Susie R. Ringleman, party of the first part, and John H. Dillon, party of the second part, witnesseth, that the said party of the first part has this day sold to the said party of the second part the following described real estate, to wit: The east one-half of the southeast quarter (E. 1/2 of S.E. 1/4) of section twenty-four (24), township fourteen (14), range eleven (11) W. I. M., containing eighty acres, upon the following terms:

"Five hundred dollars cash in hand, the receipt of which is hereby acknowledged. This five hundred dollars to be forfeited as liquidated damages if the second party fails to comply with this contract.

"Said second party is to assume and pay the first mortgage of $ 1,800.00, payable to Prudential Life Insurance Company, and due about February 1, 1918, drawing interest at 8 per cent. per annum, with interest payable semi-annually.

"The said second party is to pay the remainder of the purchase price, being twenty-seven hundred dollars ($ 2,700.00) on January 1, 1912.

"It is agreed between the parties that the said second party is to have possession on January 1, 1912, at the time that the last payment is made on the place, but in case there is some vacant oat or wheat ground on the place prior to that time and after July 1, 1911, the first party may have the privilege of working it if he can do so.

"The said first party is to pay the taxes for the year 1911, and is to pay the interest on the said $ 1,800.00 loan till the 1st of January, 1912, and to furnish abstract showing good and sufficient title, clear of all liens except the said $ 1,800.00 mortgage.

"A copy of this contract, together with a warranty deed signed by the said Susie R. Ringleman and Frederick Ringleman is to be placed in escrow in the American State Bank, to be held by them till January 1, 1912, and the said bank is hereby instructed to hold said papers till that time and to then deliver the said deed to John H. Dillon or his authorized agent upon the payment into the said bank of the said $ 2,700.00 to the credit of the said Susie R. Ringleman or her authorized agent, but the said money shall not be paid into the bank until the conditions of this contract have been complied with.

"In witness whereof, the said parties have this 1st day of February, 1911, signed and acknowledged this contract in triplicate.

"SUSIE R. RINGLEMAN,

"Party of the First Part.

"JOHN H. DILLON,

"Party of the Second Part."

¶2 The terms of the contract were not completed, each attributing the cause of the failure to the other. On the 9th day of September, 1912, plaintiff, the vendor, filed her action against the defendant, wherein she charged that the defendant had failed and refused to perform said contract, except that he had paid the said $ 500 thereon. She alleged that she had fully complied with all the terms of said contract incumbent upon her. Plaintiff tendered a deed to the property into court, and prayed for specific performance of said contract, and asked that she have judgment against defendant for $ 4,710, being the amount due on said contract, and that defendant be adjudged and required to accept said deed. Defendant filed a general demurrer to this petition, which was overruled, and exceptions saved. Defendant then answered by general denial and pleaded: (1) That by agreement of the contracting parties, the sum of $ 500 was the fixed measure of damages in case defendant failed to comply with said contract, and that in case of proof of failure on the part of defendant to comply with said contract plaintiff could recover only the sum which had been deposited as liquidated damages; (2) that the contract was not mutual, because the land mentioned therein was plaintiff's homestead, she residing thereon with her husband and family, and that her said husband had not joined in the execution of said contract; (3) that plaintiff had failed to comply with the terms of the contract on her part, in that she failed to deliver to him a deed to said property, and also failed to deliver to him an abstract to said property showing a good and sufficient title in herself, clear of all liens. Defendant further asked for judgment against plaintiff for the said $ 500 paid to her upon her contract. Plaintiff's reply was in effect a general denial. Upon the trial the court found for the plaintiff and entered the following decree:

"It is therefore by the court ordered, considered, adjudged, and decreed that the defendant, John H. Dillon, be and hereby is required to accept the deed of conveyance for the following described land, to wit, east one-half of the southeast quarter of section 24, township 14, range 11 W. I. M., Blaine county, Okla., said deed having been executed by the plaintiff and her husband, Fred Ringleman, on the 1st day of February, 1911. And it is further ordered, adjudged, and decreed that the said defendant, John H. Dillon, pay to the plaintiff herein the sum of $ 2,700, with interest thereon at the rate of 6 per cent. from the 1st day of January, 1912. * * *

"It is further ordered that the defendant, John H. Dillon, shall comply with this judgment within 15 days from the date hereof, and that the deed, introduced in evidence in the case as 'Exhibit B,' shall be by the clerk of this court held for the use and benefit of the defendant and delivered to said defendant upon the payment into court for the use and benefit of the plaintiff of the sum of moneys herein adjudged to be paid.

"The court finds from the facts introduced in said cause that the value of the land in controversy was agreed to be the sum of $ 5,000.

"It is therefore ordered, adjudged, and decreed that the sums herein ordered to be paid by the defendant shall have the same force and effect as a judgment, and, if the same are not paid according to the order herein made, the plaintiff shall have execution order of court or other process to collect the same. The defendant to pay the costs of this action.

¶3 JAMES R. TOLBERT, Judge." The motion for a new trial being overruled, the defendant prosecutes this appeal. The first question for solution is: Can a vendor enforce in a court of equity the specific performance of a contract for the sale of land? Such actions upon the part of the vendee to enforce specific performance against the vendor are very common, but, as far as our investigation has led us, we have been unable to find where our own court has passed upon the exact question here presented, but we find that the courts of other jurisdictions have quite uniformly held that the remedy is mutual, and that wherever it is available to the vendee it is also available to the vendor. In the case of Johnston v. Wadsworth, 24 Ore. 494, 34 P. 13, we find the following:

"Specific performance will lie at the instance of the vendor to enforce a contract for the purchase of land, where he alleges and makes tender of a deed therefor, since the decree will compel the acceptance of the deed as well as the payment of money."

¶4 To the same effect is the case of Raymond v. San Gabriel Val. Land & Water Co., 53 F. 883, 4 C.C.A. 89:

"A vendor of real estate, who has executed a title bond conditioned for the conveyance of the land upon the payment of the price, has an election of remedies to recover the purchase money. He may sue therefor at law or he may resort to equity for a specific performance of the contract by the vendee. Whenever the purchaser has the right to go into equity and compel the execution and delivery of a deed, the principle of mutuality gives the vendor the right to go into equity to compel the vendee to perform the contract on his part by paying the purchase money. This is an exception to the general rule that equity will decline jurisdiction of a suit for a

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