O'Fallon v. Kennerly

• Decision Date: 31 October 1869
• Citation: 45 Mo. 124
• Parties: JOHN O'FALLON, JR., Plaintiff in Error, v. THOMAS J. KENNERLY et al., Defendants in Error.
• Court: Missouri Supreme Court

45 Mo. 124

JOHN O'FALLON, JR., Plaintiff in Error,

v.THOMAS J. KENNERLY et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

This was a suit to enforce the specific performance of a bond to convey certain real estate. The facts sufficiently appear in the opinion of the court, and in Dover v. Kennerly, 44 Mo. 145, and 38 Mo. 469.

Thomas, Whittelsey, and Beal, for plaintiff in error.

In equity, time is not of the essence of the contract; and equity will relieve against a non-compliance with the terms as to time, where it would be inequitable for a party to take advantage of the forfeiture. (Seaton v. Slade, 7 Ves. 265, and notes, 2 White & Tud. L. C. Eq. 377, 398; Langworth v. Taylor, 14 Pet. 372; 2 Sto. Eq. 776, and notes; Edgerton v. Peckham, 11 Paige, 352.) But although time, by agreement of parties, be made essential, yet the condition may be waived by the parties; and if waived, specific performance will be decreed. (Seaton v. Slade, supra; Hudson v. Bartram, 3 Mad. Ch. 440; Rodiff v. Warrington, 12 Ves. 326.)

Fletcher and Green, and Cline, Jamison & Day, for defendants in error.

A court of equity will not relieve a party against the consequences of a non-compliance with a condition precedent. (Barrett v. Passumpsic Turnpike Co., 15 Verm. 757; Wells v. Smith, 2 Edw. Ch. 78; Chipman v. Thompson, Walker's Ch. 405; Spriggs v. Albin, 6 J. J. Marsh. 158; Bucks v. Jouitt's Adm'r, 3 Litt. 229.) Time is as fully expressed as the essence of the contract, in this case, as the nature and circumstances of the contract required that it should be. (2 Sto. Eq. Jurisp. § 776; 1 Sugd. on Vendors, 339.)

BLISS, Judge, delivered the opinion of the court.

One J. B. Dover was indebted to the plaintiff in six promissory notes for $383.33 each, dated February 2, 1858, due, with interest, in from one to six years respectively, which notes were secured by deed of trust upon the property in controversy. Dover paid the first two notes, and the plaintiff sold to defendants the third and fourth. The notes thus sold to defendants not being paid, they directed the trustee to offer the property for sale, and the plaintiff bid it off, but was unable to pay his bid, whereupon it was again offered, and bid in by the defendants for $530, which sum was applied in payment in full of one of the notes, and a small balance upon the other. Soon after this sale, upon complaint of loss by the plaintiff, the defendants told him that all they wanted was the money advanced for the notes they purchased, with interest, etc., and offered, if he would repay the same, to sell him the property; and accordingly, on the 6th of May, 1861, they executed to the plaintiff's trustee a bond to convey him the property and deliver up the fourth note of Dover, which he had sold them, upon condition that he should pay them $507 on the 12th of June thereafter, and $408.24 on the 2d of February, 1862. This bond was given to John O'Fallon, for the use of the plaintiff, and assigned to him before suit by the heirs of the obligee. The $507 represented Dover's third note, with interest, and costs and expenses, and the $408.24 represented the fourth note. There was no express obligation on the part of the obligee of the bond, or of any one else, to pay these sums; but the bond contained a stringent claim of forfeiture if they were not paid. Neither of these payments were made, although the plaintiff claims that in June, 1862, the second amount was included in a transaction between the defendants and Sophia O'Fallon, for the use of Charles O'Fallon, and paid July 1, 1863. There is much obscurity in the testimony as preserved in relation to this transaction, and its character does not clearly appear. If the defendants actually received a payment upon the bond long after it was due, it would play a very important part in the claim of the plaintiff by preserving the vitality of the instrument. Whatever the provisions of the bond in regard to forfeiture for want of punctuality, it is clear that if the obligor, after default, actually received a payment upon it, the forfeiture was waived and the time extended.

The petition in this case is mixed, and it is quite uncertain whether the plaintiff relies upon his general equities as holder of the fifth and sixth notes given him by Dover, secured by the trust deed and still unpaid, or whether upon his rights as beneficiary of the bond. If the sale by the trustee is to be held valid, the property became vested in the defendants, relieved of all the plaintiff's equities, and he must rely alone upon the bond. The validity of that sale can be no longer questioned, as it has been twice sustained by this court--once in Dover v. Kennerly et al., 38 Mo. 469, and again in the same case, decided at the October term, 1868, 44 Mo. 145--and we can only consider the rights of the plaintiff under the bond. The plaintiff alleges that it was given in pursuance of a verbal agreement made before the sale, that the Kennerlys alone should bid, and should then give him further time, or rather the benefit of the bid. Without giving any opinion upon the legal effect of such agreement, it can not be regarded as proved, inasmuch as it depends...