Henry v. Graddy
| Decision Date | 14 June 1845 |
| Citation | 44 Ky. 450 |
| Parties | Henry <I>vs</I> Graddy. |
| Court | Kentucky Court of Appeals |
APPEAL FROM THE WOODFORD CIRCUIT.
THIS bill was filed by Henry, the vendor, against Graddy, the vendee of a valuable tract of land, to enfore a specific execution of the contract, after a failure on the part of the complainant, to make the deed, and complete the delivery of possession, which had been partially, and perhaps principally transferred before. The Court dismissed the original bill, and on the cross bill of Graddy, rescinded the contract, and provided for the assessment of rents, &c. necessary for the final adjustment of the case. Before filing his bill, Henry had executed and tendered to Graddy a proper deed for the land, duly authenticated for record, and had at the same time offered to deliver the entire possession, whenever Graddy would receive it. But this having been done more than seven months after the stipulated day of performance, it is contended, that either by his original failure or subsequent delay, or by both, Henry had lost his right to enforce the contract, in equity, and was concluded by the refusal of Graddy, who had been punctual in tendering performance on his side.
In contracts for land, if it does not appear that the parties intended originally to provide that the failure of either to perform his part at the appointed time, should terminate his right, time is not considered in equity, as constituting so essential a feature of the contract, as that the mere failure of either party in point of time, will, without regard to other circumstances, deprive him of his right to enforce specific execution. The real question in such cases, would seem to be, whether the complainant can, with a good conscience, require performance of the other party, after his own failure, or whether the defendant can, with a good conscience, refuse performance, though there has been a failure in point of time on the part of the complainant. And this question would seem to depend upon the cause and motive of the failure, and upon its attendant circumstances; and especially upon the manner in which it was received, and upon the question whether either party showed, by his subsequent conduct, that he regarded the contract as terminated by the failure, or intended to terminate it on that account, or whether the conduct of both showed, that notwithstanding the failure, they regarded the contract as still continuing, and still to be carried out according to its terms, except in respect to time; with regard to which, they must, in such case, be considered as referring themselves to the rule of good faith, which in the absence of actual agreement, will be indicated by the circumstances of the case. The cases are almost without number, in which the vendee of land, though partially or wholly in default in the payment of the price, has been allowed to enforce performance against the vendor. And there are many cases in which the vendor, after failure on his part, and in some instances after a suit commenced, or a judgment obtained against him on the contract, has been admitted to have an equity for its enforcement.
In the case of Benedict vs Lynch, (1 Johnson's Chy. Reps. 379,) Chancellor Kent, after a full review of the cases says, "the general principle appears to be perfectly established, that time is a circumstance of decisive importance in these contracts, but it may be waived by the conduct of the party; that it is incumbent on the plaintiff, calling for specific performance, to show that he used due diligence, or, if not, that his negligence arose from some just cause, or has been acquiesced in, that it is not necessary for the party resisting the performance, to show any particular injury or inconvenience; it is sufficient, if he has not acquiesced in the negligence of the plaintiff, but considered it as releasing him." And in the case of Alley vs Deschamp, (13 Vesy, 224,) the Lord Chancellor said, "it would be dangerous to permit parties to lie by, with a view to see whether the contract would prove a gaining or losing bargain, and according to the event, either to abandon it, or considering the lapse of time as nothing, to claim a specific performance."
Understanding by the last clause of the foregoing extract from Chancellor Kent's opinion, which puts the acquiscence of the defendant in opposition to his considering himself as released by the plaintiff's failure, that it is not sufficient that he has in his own mind considered that he is or may be released, but that he must show this by his conduct, we think the two extracts contain the true doctrine, as to the regard which should in equity be paid to time, as an ingredient of these contracts, and as to the effect which a failure in respect to time, should have upon the right of the delinquent party to enforce the contract in equity. If there was just cause for his failure and subsequent delay, his equity remains unimpaired. Or if though he be without equitable excuse for his failure, the other party has acquiesced in it, has not shown by his conduct that he considered himself released, but has acted as if he considered the contract as still subsisting, and still to be executed, except in regard to the stipulated time; and if during the continuance of this state of things, or within a reasonable time after he is apprized of its termination, the complainant has tendered full performance, having in the mean time always shown that he regarded the contract as subsisting, and to be executed, and has not waited to see if the bargain would turn out to be a good or a bad one, and if the delay being productive of no capital injury or inconvenience, may be fairly compensated to the other party,...
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