Isom v. Johnson

CourtSupreme Court of Alabama
Citation87 So. 543,205 Ala. 157
Docket Number8 Div. 259
PartiesISOM et al. v. JOHNSON.
Decision Date02 December 1920

Rehearing Denied Jan. 6, 1921

Appeal from Circuit Court, Limestone County; Robt. C. Brickell Judge.

Bill by W.H. Johnson against Arthur L. Isom and another to specifically enforce a written contract to convey land. From a judgment overruling demurrers to the bill, respondents appeal. Reversed and remanded.

Gardner J., dissenting.

Sanders & Sanders, of Athens, for appellants.

Horton & Patton, of Athens, for appellee.


Appellee filed the bill in this cause seeking the specific performance of a contract by which appellants agreed to sell and convey to appellee a certain tract of land in Limestone county at a stipulated price per acre. This contract was executed on August 11, 1919. Payment of the purchase money was to be made December 1, 1919, and possession delivered January 1, 1920 after payment. Warranty deed was to be executed and delivered upon payment of the purchase price. Appellants' demurrer was overruled, after which this appeal.

It is contended in the first place that time was of the essence of this contract, and hence that appellee lost his right to a conveyance by failing to pay, or tender payment, on the stipulated date. The general rule is that in equity time is not regarded as of the essence of contracts. But, observes the Supreme Judicial Court of Massachusetts in Barnard v. Lee, 97 Mass. 92:

"This equitable doctrine was formerly carried to an unreasonable extent, and the specific performance of contracts enforced after such a lapse of time and change of circumstances as to produce as much injustice as it avoided. In modern times, the doctrine has been guardedly applied; and it is now held that time, although not ordinarily of the essence of a contract in equity, yet may be made so by clear manifestation of the intent of the parties in the contract itself, by subsequent notice from one party to the other, by laches in the party seeking to enforce it, or by change in the value of the land or other circumstances which would make a decree for the specific performance inequitable." Sheffield Co. v. Neill, 87 Ala. 158, 6 So. 1; Haggerty v. Elyton Land Co., 89 Ala. 428, 7 So. 651; 5 Pom.Eq.Jur. (4th Ed.) § 2232; 2 Page on Contracts, § 1161 et seq.

We do not find in the language of the original contract in this case any clear manifestation of an intent that time should be of its essence. The foregoing authorities show also that if the subject-matter of an executory contract of sale is one of rapidly fluctuating value, time is ordinarily looked upon as of the essence, and in this cause we are asked to take judicial notice of the fact that the value of farm lands in Limestone county fluctuated rapidly at and around the time of this contract; but we feel constrained to deny such notice of fluctuation in the value of lands, generally or in Limestone county, as would take this contract out of the general rule.

"Although time is not ordinarily essential, yet it is, as a general rule, material. In order that a default may not defeat a party's remedy, the delay which occasioned it must be explained and accounted for. The doctrine is fundamental that a party seeking the remedy of specific performance, and also the party who desires to maintain an objection founded upon the other's laches, must show himself to have been 'ready, desirous, prompt, and eager.' " 4 Pom.Eq.Jur. (4th Ed.) §§ 1408, 2234.

In order to meet the objection that he failed to pay the money as stipulated, complainant avers that prior to December 1, 1919, he paid to defendant A.L. Isom the sum of $250 on the purchase money, and that the latter has never offered to return the same. If this payment were simply a payment on purchase money, time, in consequence of its retention, might have ceased to be material to the contract in suit. 5 Pom.Eq.Jur. § 2234. But the contract discloses that "to bind himself for the payment of the farm described" plaintiff was to pay the sum of $500, which was to be retained upon default in the payment of the full purchase price. The result, we think, is that the retention of $250, paid as a part of the $500 which was to be paid in any event, had no effect upon the materiality of the stipulation as to time.

But further, the bill avers that prior to December 1st complainant applied to one Vaughan for a loan of the money with which to make payment to defendants according to contract; that Vaughan said he would have the money in a few days; that complainant told defendant Isom what Vaughan had said, and that thereupon defendant said that any time during December would do for the payment of the purchase money; that in December complainants "arranged for the money" and told Isom he was ready, but that "Isom neither agreed nor refused to carry out the contract, but stated that he would think it over;" that on several similar occasions Isom said he would do what was right, but that recently he has refused to carry out the contract; has refused to receive the purchase money or execute a deed; has denied that he is longer bound. This is the abbreviated substance of matter brought forward in the bill to show that defendant Isom waived his right to insist upon performance of the contract according to its...

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36 cases
  • Wall Inv. Co. v. Schumacher
    • United States
    • United States State Supreme Court of Missouri
    • 8 Marzo 1939
    ...144 A. 1; Rice v. Fidelity & Deposit Co., 103 F. 427, 43 C. C. A. 270; G.S. Johnson Co. v. Nevada Packard Mines Co., 272 F. 291; Isom v. Johnson, 205 Ala. 157; Parson, Rich & Co. v. Lane, 97 Minn. Plaintiff cites cases as follows: Wilson v. Huston, 13 Mo. 146; Yeager v. Farwell, 20 L.Ed. 47......
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    • United States
    • United States State Supreme Court of Missouri
    • 8 Marzo 1939
    ...1; Rice v. Fidelity & Deposit Co., 103 Fed. 427, 43 C.C.A. 270; Johnson Co. v. Nevada Packard Mines Co., 272 Fed. 291; Isom v. Johnson, 205 Ala. 157; Parsons, Rich & Co. v. Lane, 97 Minn. 98. (5) Waiver is a question of intention and is to be found as a fact by the jury from evidence tendin......
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    ...... Federal Land Bank does not change the rights of mortgagor or. her assigns in the premises. Lee v. Macon County Bank, supra;. Johnson v. Williams, 212 Ala. 319, 102 So. 527;. sections 10144, 10147, Code 1923. . . The. complainants had the right to rely on the statement ... such a case, or that of the mortgagor's right of. redemption. The postcript did not bring the case within the. decision of Isom v. Johnson, 205 Ala. 157, 87 So. 543, and the question was the waiver of performance and the. right of specific performance of a written contract ......
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    ...relinquishment of a known right. Bell v. Birmingham Broadcasting Co., 263 Ala. 355, 357, 82 So.2d 345 [ (1955) ] ; Isom v. Johnson, 205 Ala. 157, 159, 87 So. 543 [ (1920] ) ; 56 Am.Jur., Waiver, § 2, p. 102, § 15, p. 115; 45 C.J.S. Insurance§ 673, pp. 612–613. Clearly, it seems to us, there......
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