Friar v. Baldridge

• Decision Date: 21 June 1909
• Citation: 120 S.W. 989,91 Ark. 133
• Parties: FRIAR v. BALDRIDGE
• Court: Arkansas Supreme Court

120 S.W. 989

91 Ark. 133

FRIAR v. BALDRIDGE

Supreme Court of Arkansas

June 21, 1909

Appeal from Logan Chancery Court, Northern District; J. Virgil Bourland, Chancellor; affirmed.

Decree affirmed.

Robert J. White, for appellant.

1. Time was of the essence of the contract. A waiver of forfeiture by Friar is not established by the evidence, and is contradicted by the conduct of the parties. Payment at the time specified was a condition precedent to the right to purchase, which right terminated on failure to make such payment. 76 Ark 579; 54 Ark. 16; 57 L. R. A. 176; 17 N.E. 60; 21 S.W. 970; 45 S.W. 275; 17 N.E. 61; 14 Tex. 373; 113 S.W. 800.

2. A written contract for the sale of land may be rescinded by parol. 151 Pa.St. 561; 25 Ala. 92; 86 Miss. 669; 13 L. R. A 633; 47 Ala. 714; 4 Cal. 315; 10 Ind. 223; 13 Abb. N. C. (N Y.) 340; 43 Vt. 592; 44 N.W. 835; 88 N.W. 54; 23 Cent. Dig § 100, tit. Frauds, St. of; 20 Cyc. 219; 55 Ark. 73.

3. Appellees cannot enforce specific performance over their agreement to rescind the contract. 13 L. R. A. 633; 6 Id. 652; 57 Id. 176.

Appellees, pro se.

1. It is the chancellor's finding that appellant "extended the time orally and by various other acts waived said time," and the evidence sustains such finding. He cannot insist on a forfeiture. 87 Ark. 593, and cases cited.

2. If Baldridge did make a verbal contract with Friar to sell the land back to him, it falls within the statute of frauds and can not he enforced. Kirby's Dig., § 3645; 1 Ark. 391; 15 Ark. 322; 16 Ark. 271; 30 Ark. 249; Id. 390; 41 Ark. 264; 54 Ark. 519.

OPINION

FRAUENTHAL, J.

On September 3, 1904, the parties to this litigation entered into a written contract for the sale and rent of a tract of land by William Friar, the defendant below, to F. V. Baldridge and W. A. Baldridge, the plaintiffs below. The portions of said contract which are material to the determination of the rights of the parties herein are as follows:

"CONTRACT OF SALE AND RENT.

"This contract made this 3d day of September, 1904, between Wm. Friar, party of the first part, and F. V. Baldridge and W. A. Baldridge, parties of the second part, witnesseth that, in consideration of the stipulation hereinafter contained, and the payment to be made as hereinafter specified, the first party agrees to sell unto the second parties the following described real estate situated in Logan County, Arkansas, to-wit: (Here follows the description of the land.)

"And the said second parties, in consideration of the premises, hereby agree to pay to the order of the said first party the following sums at the several times named below:

"Nov. 1, 1904, $ 50, 10 per cent after due.

"Nov. 1, 1905, $ 100, 10 per cent after date, (indorsed) paid A. Hall.

"Nov. 1, 1906, $ 100, 10 per cent after date, (indorsed) paid A. Hall.

"Nov. 1, 1907, $ 100, 10 per cent after date, (indorsed) paid A. Hall.

"For which several amounts the parties of the second part have executed and delivered to the said party of the first their four (4) promissory notes, dated on the 3d day of September, 1904. * * *

"But in case the said second party shall fail to make the payments aforesaid, or any of them, punctually, and upon the strict terms and at the times above limited, and likewise to perform and complete all and each of the agreements and stipulations aforesaid, strictly and literally, without any failure or default, time being of the essence of this contract, then this contract shall, from the date of such failure, be null and void, and all the rights and interests hereby created or then existing in favor of said second parties, their heirs or assigns, or derived under this contract, shall utterly cease and determine, and the premises hereby contracted shall revert to and revest in the said first party, his heirs or assigns (without any declaration of forfeiture or act of re-entry, or without any other act by the said first party to be performed, and without any right in said second parties of reclamation or compensation for moneys paid or improvements made), as absolutely, fully and perfectly as if this contract had never been made.

"And it is hereby further convenanted and agreed by and between the parties hereto that, immediately upon the failure to pay any of the notes above described, all previous payments shall be forfeited to the party of the first part, and the relation of landlord and tenant shall arise between the parties hereto for the year from January 1st immediately preceding the date of default, and the said party of the second part shall pay rent at the rate of ($ 50) fifty dollars for occupying the premises from the said January 1st to the time of default, such rent to be due and collectable immediately upon such default."

The defendant claimed that the plaintiffs failed to pay the last two mentioned notes; and on November 27, 1907, he gave written notice to them to quit the land and deliver its possession to him. The plaintiffs on the following day instituted this suit in the Logan Chancery Court, and in their complaint alleged that they had paid all said notes and asked for a specific performance of the above contract to convey said land to them. On December 2, 1907, William Friar instituted in the Logan Circuit Court a suit of unlawful detainer against the plaintiffs, and therein sought a recovery of the possession of said land. That suit was transferred to the Logan Chancery Court, and in said court was consolidated with the above suit of plaintiffs for specific performance.

Upon a trial of the cause in the chancery court a decree was rendered granting the prayer of the plaintiffs and divesting all title to the land out of defendant and investing same in plaintiffs. From that decree the defendant presents this appeal.

1. It is contended by the defendant that the plaintiffs failed to pay the last two notes mentioned in the above contract; and that by its terms time was of the essence thereof, and on the failure to make said payments the right of plaintiffs to purchase the land became forfeited.

Parties may enter into a valid contract relative to the sale of land whereby they may provide that time of payment shall be of the essence of the contract, so that the failure to promptly pay will work a forfeiture. Ish v. McRae, 48 Ark. 413; Quertermous v. Hatfield, 54 Ark. 16, 14 S.W. 1096; Block v. Smith, 61 Ark. 266, 32 S.W. 1070. But the final effect of such an agreement will depend on the actual intention of the parties, as evinced by their acts and conduct; and such a breach of the contract as would work a forfeiture may be waived or acquiesced in. The law will strictly enforce the agreement of the parties as they have made it; but, in order to find out the scope and true effect of such agreement, it will not only look into the written contract which is the evidence of their agreement, but it will also look into their acts and conduct in the carrying out of the agreement, in order to fully determine their true intent. It is a well-settled principle that equity abhors a forfeiture, and that it will relieve against a forfeiture when the same has either expressly or by conduct been waived. The following equitable principle formulated by Mr. Pomeroy has been repeatedly approved by this court: "If there has been a breach of the agreement sufficient to cause a forfeiture, and the party entitled thereto either expressly or by his conduct waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary." 1 Pomeroy Eq. Jur. 452; Little Rock Granite Co. v. Shall, 59 Ark. 405, 27 S.W. 562; Morris v. Green, 75 Ark. 410, 88 S.W. 565; Banks v. Bowman, 83 Ark. 524, 104 S.W. 209; Braddock v. England, 87 Ark. 393, 112 S.W. 883.

Guided by these principles, we will inquire whether under the evidence there was actually a forfeiture of this contract to sell and convey; and, if so, whether that forfeiture was waived.

The evidence tends to prove that the plaintiffs paid the first note before its maturity, and paid the second note shortly after its maturity. About the time the third note matured the plaintiffs paid to the defendant $ 75, and desired that it be appropriated on the payment of that note. The plaintiffs were at that time owing the defendant other indebtedness; and the defendant said to them that he would give them time on the payment of the land notes, and that he would appropriate this payment to the other indebtedness. He had said before that time that he would give the defendants ten years in which to pay for the land; and on this occasion he indicated and agreed that he would extend the time of the payment of the note for the land, and would not insist on its prompt payment. In accordance with that understanding, the above payment was applied by defendant to the other indebtedness. The defendant did not, during the following year of 1907, make any request for rent for that year; nor did he make a suggestion that the contract was forfeited although nothing was paid on the note maturing November 1, 1906. In the meanwhile, during all these years, the plaintiffs made lasting improvements on the land, of the value of $ 390. In the fall of 1907, the plaintiff W. A. Baldridge was contemplating moving from the land to the town of Paris; and he and the defendant entered into oral negotiations by which the defendant agreed to purchase the land back at the price of $ 400; and, after deducting therefrom what was owing by plaintiffs, to pay the balance. It is claimed also by ...