Gannaway v. Toler

• Decision Date: 12 April 1920
• Docket Number: 21016
• Citation: 122 Miss. 111,84 So. 129
• Court: Mississippi Supreme Court
• Parties: GANNAWAY v. TOLER et al

84 So. 129

122 Miss. 111

GANNAWAY v. TOLER et al

No. 21016

Supreme Court of Mississippi

April 12, 1920

March 1920

APPEAL from Chancery Court, Bolivar County, HON. W. F. GEE Chancellor.

Suit by W. J. Toler and another against R. J Gannaway for specific performance. Decree for complainants and defendant appeals. Affirmed.

Decree affirmed.

Shands & Jackson, for appellant.

If the court will take the trouble to read the authorities cited by appellees, with the facts in mind they will agree with me in my contention that none of them can be taken as a precedent by this court in holding that Gannaway had waived any of his rights to declare the contract forfeited.

I wish to call the court's attention to the facts in cases cited by counsel for appellees. His first citation of authority is from 36 Cyc., page 714, which declares the rule of waiver and gives as a reason for such rule, the language underscored in appellees brief as follows: He should not permit the purchaser to spend money and labor on the land relying upon the existence of the contract.

This authority thereby recognize the rule of reason referred to by me above. He next cites an excerpt from Cyc. volume 39, pages 1391-92, wherein the author again states the general rule. The same author continues on pages 1393, 94, and part of 95 to give illustrations applying the rule of reason, as does this authority every other place were the subject is discussed.

He next cites the case of Cue, et al., v. Johnson, 85 P. 598, in which the supreme court held that the vendor had waived his right to declare forfeiture; but it predicates such holding upon an expressed agreement made by the vendor at the time of default to grant to the vendee additional time within which to make the payment, and after doing this the vendor changed his mind and decided to declare a forfeiture.

The court holds in that case that the granting of additional time was what operated as a waiver. The case of Van Dyke v. Cole, 70 Atlantic, 593, cited by counsel for appellees is different from the case at bar in this very material particular. After default was made by the vendee, the vendor recognized the contract as still in force and effect, in fact sold the land to a third party subject to contract, and at the time of such sale assigned the note to such second grantee.

The supreme court of North Dakota in the case of Farguson v. Talcott, cited by counsel, reported in 73 N.W. 207, holds that the right to declare forfeiture in that case was waived; but the facts were that the vendee had applied for an extension of time, and at the time of making such application the vendor gave no positive answer one way or the other, but held them off and led them to believe that he was going to grant the extension applied for, and the vendee relied upon this; continuing to make every effort up to the time they were notified of the forfeiture being declared.

The court held this conduct to be inequitable and to operate as a waiver. The case of Gaughen v. Kerr, 99 Iowa 214, and 68 N.W. 694, relied on by counsel as authority for the waiver in this case does hold that the vendor waived the right to declare the forfeiture. The case of Burroughs v. Jones, 79 Miss. 214, is a very different case from the case at bar.

The court at page 219 says: "Now, here Craig had so improved the premises that they were worth several times more than the purchase price. He had paid a cash payment, and also the first deferred payments, and within a short time after the last payment became due tendered all the money due under said contract."

On this state of facts our court reaches a conclusion which is stated in a quotation, from the case of Cheney v. Libby, 33 U.S. L. E. 823, is as follows: "Even where time is made material, by express stipulation the failure of one of the parties to perform a condition within the particular time limited will not, in every case defeat his right to specific performance if the condition be subsequently performed without unreasonable delay. And no circumstances have intervened that would render it unjust or inequitable to give such relief."

In the case at bar, though appellees' attention was forcibly called to the default on the 23rd day of August they had never, up to that time of the trial, paid or offered to pay Mr. Gannaway a single cent; but after they were informed that time of payment would be strictly insisted upon, they willfully failed and neglected, for a period of two years to make anything that even they claimed could be treated as a tender, and until a time when the land had enhanced in value one hundred dollars per acre, according to the testimony of Toler, himself.

I have not been able to find the case of Monroe v. Taylor, cited by counsel and so cannot discuss it; but I have found the case of Cheney v. Libby, 134 U.S. which case does not decide the proposition at all as to whether the vendor, by failing to act promptly in declaring the forfeiture, waived his rights. They predicate their decision upon the proposition that vendor himself purposely made it impossible for vendee to comply with the provisions of the contract, which called for payment in gold coin or legal tender notes.

The payment was due to be made at a certain bank on a certain day. The vendor had a short time before this written to the vendee in answer to the request for an extension of time if he would consider it; that he would probably be away from home for some time, but that the delay in answering should not prejudice the vendee. Then on the day that the payment was due, he went to the bank, which I presume was the only bank in the town, and drew out all of the legal tender notes, for which he had no earthly use except to prevent the vendee from getting them.

The vendee offered to pay him in current funds, which he declined to take, and then immediately hid out.

Within fifteen months afterwards, the vendee succeeded in finding some legal tender notes, and had his attorney to try to find the vendor, but he had, in that fifteen months' time wholly disappeared.

This tender of legal tender notes was made on the very day that the payment was due, but about fifteen minutes after banking hours, and the supreme court of the United States predicates its finding in this case upon the fact that the vendor had actively taken steps to prevent the payment being made.

The case of Camp Manufacturing Company v. Parker, 91 F. 705, is upon a very different contract. In that case the contract provides that "on the failure to make any payments when due, vendee shall be given a notice of ten days, and if the payment is not made within that time the agreement shall terminate."

After default was made in one of the payments, the vendor wrote two letters to the vendee asking him about the amount of timber cut, etc., but the court says in discussing these letters, "Neither letter contained any reference to the termination of the agreement, but they asked information in regard to the number of acres of timber as shown by the survey, and upon which the amount of payment depended."

Plaintiff was unable to give the amount shown by the survey; delayed a few days, and then sent a check, which was in reality, slightly in excess of the amount due. After the check was received, the vendor determined to declare a forfeiture, and the court in that case held that he could not do so because the letters written by the vendor were insufficient as notice to work a forfeiture under the terms of the contract. There is no suggestion in that case that any delay in declaring the forfeiture deprived the vendor of his right to insist upon it.

The case of Shouse v. Doane, 21 So. 807, is also a case in which the supreme court of Florida says the vendor, after default "by deliberate acts recognized the contract as still subsisting" and the vendee was led to act to his prejudice by reason thereof. I have not had access to the case of Mound Mines Co. v. Hawthorne, 173 F. 882, but judging from the context of the note from which the authority is obtained by counsel for appellees, I presume it holds the same doctrine as is announced in the case of Camp Mfg. Co. v. Parker, supra.

The case of Mirkle v. Ball, 54 So. 1000, holds that specific performance could be enforced in that case because vendor never undertook to declare forfeiture; that he lived some time after default was made in the payment and died, and no one undertook to declare forfeiture until suit was brought. I presume the case of Gardner v. Donalson, 7 S.E. 163, was cited through inadvertence, as this case discusses the validity of a tax sale.

The case of Iowa R. Land Co. v. Mickel, 41 Iowa 402, is an authority very strongly in our favor. In that case the note fell due on Sunday, the next day it was paid in full, with the exception of three dollars. A few days after that the remaining three dollars was paid, yet the Iowa court held that equity would not relieve against the forfeiture in that case.

The case of Gaughen v. Kerr, has already been discussed by me. The case of Studdard v. Hawkins, 78 S.E. 116, like the case of Cheney v. Libby, discloses the fact that the default was a result of an active inducement on the part of the vendor.

The case of Thayer v. Wilmington Star Min. Co., 105 Ill. 540, is different from the case at bar in that in the Thayer case after the default was made in the payment, the vendor recognized the existence of the contract by affirmative act and undertook to enforce payment of that installment. In order to sustain his position that a tender was not necessary, counsel cited the case of Askhurst v. Peck, 101 Ala. 509.

I do not think that this case taken as a whole means what counsel contends; but if it does it is directly in conflict with the holding...