Johnson v. McMullin

• Citation: 3 Wyo. 237,21 P. 701
• Parties: JOHNSON v. McMULLIN
• Decision Date: 22 January 1889
• Court: United States State Supreme Court of Wyoming

21 P. 701

3 Wyo. 237

JOHNSON v. McMULLIN

Supreme Court of Wyoming

January 22, 1889

Error to district court.

Action by Emma McMullin against Iver Johnson for breach of a contract to convey land. Judgment for plaintiff, and defendant brings error.

Judgment affirmed.

Bryan Seevers & Stewart, for plaintiff in error.

Donzelmann & Miller, for defendant in error.

CORN J.

OPINION

CORN, J.

On the 24th day of May, 1886, the plaintiff (defendant in error) entered into the following agreement with the defendant, (plaintiff in error:) "Cheyenne, May 24, 1886. This day it is mutually agreed by the undersigned that the deed herein inclosed, from Iver Johnson to Emma McMullin, for block 370, in Cheyenne, Wyoming territory, sold to Emma McMullin by said Johnson for one hundred and eighty dollars, --fifty, cash; one note, due three months after date, for fifty dollars; and one note, due six months from date, for eighty dollars, --payable to the order of Iver Johnson. When said notes are fully paid, with interest, the said deed shall be delivered to said Emma McMullin. IVER JOHNSON. EMMA McMULLIN." Plaintiff paid the fifty dollars, and executed her notes for the balance, as provided in the agreement, and delivered them to defendant. Defendant gave his receipt for them in the following form: "$ 50.00. Received of Emma McMullin fifty ($ 50.00) dollars, as purchase money and forfeit for block No. 370, in the city of Cheyenne, Wyoming territory; said block 370 being sold to said Emma McMullin for one hundred and eighty dollars on the following conditions: Fifty dollars cash today, May 24, 1886; fifty dollars on August 24, 1886, at one per cent. per month from date until paid; and eighty dollars on November 24, 1886, at one per cent. a month until paid, --the deed for said block to be made and executed to-day by Iver Johnson, of Cheyenne, Wyoming territory, to said Emma McMullin, and is to be left in escrow until the said fifty dollars and eighty dollars are paid, with interest as aforesaid, and then said deed to be delivered to said Emma McMullin. IVER JOHNSON. By J. W. BRUNER, his Agent."

The deed was made and deposited with J. W. Bruner, to be held in escrow. Neither of the notes was paid. About September 1st defendant gave plaintiff 30 days more time upon the first note. Bruner held the deed for two or three months after the maturity of the second note, and then turned it over to the defendant. Some time after the deed was returned to him defendant sold the block. About the 12th of the following April plaintiff went to defendant, offered to pay the notes and interest, and demanded the deed. Defendant refused to accept the money, and said that he had supposed that the contract was abandoned, and had sold the lots April 18th. H. Donzelman, as agent for plaintiff, went to defendant, and again offered to pay the amount due, and demanded the deed, and defendant made, in substance, the same reply. April 21st plaintiff brought this suit for damages. The case was tried by the court without a jury.

There are two questions in this case: First. Was the contract forfeited by plaintiff's failure to pay the notes when due? Second. If plaintiff was entitled to recover, did the court adopt the proper measure of damages in rendering its judgment?

The plaintiff ought to have paid the notes at maturity, under her contract, but it does not follow that time was of the essence of the contract. Time will not be held to be of the essence of the contract unless it clearly appears that such was the intention of the parties. By the terms of the agreement in this case the deed is to be delivered "when said notes are fully paid, with interest." A fair construction for both parties to this agreement is to construe it according to its express terms. If plaintiff failed to pay her notes at maturity, defendant had it in his power to tender the deed and recover the amount of the notes by suit; or, upon the other hand, it was his right to deliver to plaintiff her notes, and declare a forfeiture of the contract, provided the contract provided for a forfeiture. He did neither, but retained the notes, and sold the property to a...