Fox v. Hutton
| Decision Date | 08 March 1920 |
| Docket Number | 232 |
| Citation | 219 S.W. 28,142 Ark. 530 |
| Parties | FOX v. HUTTON |
| Court | Arkansas Supreme Court |
Appeal from Mississippi Chancery Court, Chickasawba District; Archer Wheatley, Chancellor; affirmed.
Decree affirmed.
Geo. W Barham. Chas. F. Sullenger and A. F. Barham, for appellant.
1. The oral agreement here was collateral to the written agreement and did not vary nor contradict it, and is not within the statute of frauds. 10 R. C. L. 1037. Appellee granted the extension of time, and a strict performance of the contract was waived by him. Appellee made no effort to assist appellant in perfecting arrangements for a loan, but actually prevented appellant from obtaining the money, and there was no breach by appellant, and appellee can not rightfully complain of the failure to perform, since the failure was entirely due to appellee's own conduct. 85 Ark. 596. There is no breach where performance is prevented by the conduct of the other party. Ib.; 102 Ark. 152; 15 Id. 376; 64 Id. 228.
2. Appellee waived any breach of contract as to time of performance. His own conduct was the controlling cause of the delay, and he waived strict performance, as well as rendered it impossible, and his case falls within the rule announced by this court. 7 Ark. 123; 59 Id. 405; 87 Id. 52; 83 Ill. 517; 127 Ala. 602; 70 F. 146; 85 Md 337; 3 Page on Contracts, 1502; 89 Ark. 203-204. He can not insist upon forfeiture. 48 Ark. 413; 54 Id. 16; 61 Id. 266. Equity abhors a forfeiture and will relieve when expressly or impliedly waived. 1 Pom., Eq. Jur., 452; 59 Ark. 405; 75 Id. 410; 83 Id. 524; 91 Id. 137. Any conduct calculated to induce the other party to believe that a forfeiture will not be insisted on will be treated as a waiver. 102 Ark. 442. See, also, 51 Id. 105; 59 Id. 405; 77 Id. 168.
3. Appellee set an unreasonable time for the performance, and he acquiesced in the delay. After leading appellant to believe he would wait for the money, he gave appellant just four days to produce $ 12,000. This was unreasonable, arbitrary and unjust.
Nelson & Keck, for appellee.
In the trial below all the issues of law and fact were found for the defendant, and the complaint was properly refused. (1) Hutton agreed to furnish an abstract of title and failed and refused to do so, though aften requested, and rendered it impossible for plaintiff to perform his contract. (2) Plaintiff was ready, willing and able to comply with the terms of the contract, and so notified defendant, who failed and refused to carry out his obligations. (3) Plaintiff rented the lands to defendant for 1918, and should receive the rents. The contract contained mutual obligations and undertakings by the vendor and vendee. It was Fox's fault. When the contract was reduced to writing and signed, nothing was said about an abstract. 124 Ark. 70; 109 Id. 82. If there was any subsequent contract, which the court held there was not, it was without consideration and void. 118 Ark. 283. The complaint for specific performance was in the discretion of the chancellor and properly refused. 34 Ark. 663; 21 Id. 110.
OPINION
This action was begun by the appellant against the appellee for the specific performance of a contract for the sale of a tract of land containing 120 acres in Mississippi County.
The appellant set out the contract, which was dated October 31 1917. After describing the lands and reciting that appellee agreed to sell and appellant to buy same, the contract provides as follows:
The appellant alleged that it was understood at the time of the execution of the contract that it would be necessary for appellant to borrow all or the greater part of the purchase money, and that if appellant did not succeed in procuring a loan by January 1, 1918, appellee would allow appellant such additional time as might be necessary to complete his negotiations for the loan; that a few days after the contract was executed appellant was notified by a loan company that the loan would be made to him upon approval of title; that he employed an abstractor to bring down the abstract of title to date; that after considerable delay appellant succeeded in obtaining abstracts from the loan companies who held liens upon the land; that the last abstract was received February 18, 1918; that appellant placed these abstracts in the hands of the loan company from whom he expected to borrow the money; that this company furnished appellant with the list of requirements necessary in regard to the title before the loan company would furnish the money; that one of these requirements was that appellant should discharge the liens which two loan companies held and to make a correction in the entry made by the clerk showing the satisfaction of a trust deed on the record; that the appellee did not aid the appellant in meeting the requirements of the loan company in perfecting the abstract of title which the loan company exacted before it would make the loan; that appellant worked diligently to perfect this abstract until March 11, when appellee arbitrarily declared that appellant must pay him and close the deal by March 15; that while negotiations were pending the loan company delivered appellee a statement of the amount of interest it would be necessary for appellee to pay before he could discharge their loan; that appellee refused to pay this amount which in itself was sufficient to prevent the making of the loan; that appellee approached appellant and insisted that it was appellant's duty to pay the interest accruing on the loan from the date of the making of the contract, which appellant agreed to do; that appellant also offered at one time during the negotiations to pay the appellee the sum of $ 3,000 of the purchase price, which appellee refused; that after the making of the contract with appellee and while appellant was negotiating with the loan company to procure the necessary loan the lands greatly enhanced in value, being worth some $ 1,500 more at the time the appellee finally repudiated the contract than they were when the contract was executed; that while appellant was negotiating with a loan company the appellee interfered and prevented the loan company from making the loan by telling the agent of such company that he (appellee) was not going to comply with the contract.
Appellant further set up that there was an oral agreement between the appellant and the appellee by which the appellee was to hold the lands during the year 1918 and pay appellant, as rent therefor, one-fourth of all cotton and cotton seed and one-third of all corn raised on the land.
Appellant alleged that he had duly performed the contract on his part and that appellee refused to perform. Appellant, therefore, prayed that the appellee be required to perform his contract upon the payment to him of the purchase money and that appellant have judgment against the appellee in the sum of $ 2,650 for rent of the lands during the year 1918.
The appellee answered, admitting that he entered into the written contract set up in the complaint, but denied specifically the other allegations and alleged that appellant had never at any time offered to comply therewith, although repeatedly requested to do so. Appellee averred that until the expiration of the time allowed in the contract for the payment of the purchase money he was at all times ready, able and anxious to carry out the terms of the contract; that on account of the refusal of the appellant to comply with the terms of the contract the circumstances had so altered and changed as to render it inequitable and unjust to require the appellee to convey the lands which circumstances were well known to the appellant during the life of the contract.
The appellant, among other things, testified that the reason...
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