Dixon v. Anderson

• Decision Date: 26 July 1918
• Docket Number: 1630.
• Citation: 252 F. 694
• Parties: DIXON v. ANDERSON.
• Court: U.S. Court of Appeals — Fourth Circuit

252 F. 694

DIXON v. ANDERSON.

No. 1630.

United States Court of Appeals, Fourth Circuit.

July 26, 1918

Luther B. Way, of Norfolk, Va. (Pender, Way & Foreman, of Norfolk Va., on the brief), for appellant.

Harry K. Wolcott and H. C. Sherritt, both of Norfolk, Va. (Wolcott Wolcott, Lankford & Kear, of Norfolk, Va., on the brief), for appellee.

Before PRITCHARD and KNAPP, Circuit Judges, and CONNOR, District judge.

KNAPP Circuit Judge.

On defendant's motion the court below dismissed plaintiff's bill without prejudice, and he appeals. The allegations of his bill may be thus summarized:

Under date of May 24, 1917, both parties signed a contract, drawn by themselves, by which Anderson agreed to sell to Dixon two apartment houses in the city of Norfolk, Va., known as the West End and the Panacea, for the sum of $50,000, and Dixon agreed to sell to Anderson a farm in Beaufort, N.C., with certain live stock and farming implements, for the sum of $40,000. Anderson did not in express terms agree to buy the farm, nor did Dixon in express terms agree to buy the apartment houses. The concluding paragraph of the contract reads as follows:

'This agreement is written in duplicate, and is signed and agreed to by both of parties named, which is attached hereto and is witnessed. This transfer is to take effect as of December 1, 1917. Tax, interest and insurance to be prorated as of this date.'

About July 16, 1917, Anderson served written notice on Dixon that he would not carry out the contract, and Dixon in turn promptly notified Anderson that he intended to fully perform on his part, and that he expected Anderson to do the same. A few days later, by deed dated July 24, 1917, Anderson, without the knowledge of Dixon, sold the West End apartment to one Fox. On learning of this two or three weeks afterwards, Dixon instructed his representative to ask Anderson whether he intended to carry out the contract; but Anderson again declared he would not, and that he repudiated it altogether. Thereupon, on the 4th of September, Dixon brought this suit for specific performance. Besides the usual averments that plaintiff has at all times been ready, able, and willing to fully perform his part of the contract, and that defendant has wholly refused to perform, the bill alleges an agreement between the parties, when the contract was signed, that the price of the West End was $30,000, and the price of the Panacea $20,000. A copy of the contract is filed as an exhibit and made a part of the bill. The prayer for relief is to the effect, among other things, that if the court be without power to compel a conveyance of the West End apartment, because of its sale to an innocent third party, the defendant be required to convey the Panacea apartment, and that plaintiff have a money judgment for the balance due him in that case, according to the agreed values of the respective properties.

In support of the decree of dismissal it is argued that the suit was prematurely brought, because the contract was not to be performed until the following December. The contention is clearly untenable. It is well settled that, if one of the parties to an executory contract avowedly and unequivocally repudiates it, the other party is not obliged to wait until the time for performance arrives, but may sue to establish his rights as soon as the contract is broken. Roehm v. Horst, 178 U.S. 1, 20 Sup.Ct. 780, 44 L.Ed. 953; Payne v. Melton, 67 S.C. 233, 45 S.E. 154; 36 Cyc. 771; Miller v. Jones, 71 S.E. 248, 68 W.Va.

526, 36 L.R.A. (N.S.) 408. In the last-named case, which appears directly in point, the court cites a number of Virginia and West Virginia decisions, and says:

'Most of the above cases were actions at law for damages for breach of contract; but we do not perceive that any different rule applies in equity, provided the contract is such a one as equity can and will enforce specifically. In case of such a contract the injured party may elect his remedy; he may either sue at law for the breach, or he may sue in equity for specific performance.'

It is also argued that the contract is unenforceable for want of consideration, because plaintiff did not expressly agree to buy the apartment houses, and defendant did not expressly agree to buy the farm. It is even contended that no mutual contract was entered into, but that the writing in question merely 'contains two separate and distinct options to purchase, each option as widely separated as though written on...