King v. Seebeck

• Decision Date: 25 September 1911
• Citation: 118 P. 292,20 Idaho 223
• Parties: THOMAS KING, Appellant, v. H. H. SEEBECK, Respondent
• Court: Idaho Supreme Court

118 P. 292

20 Idaho 223

THOMAS KING, Appellant, v. H. H. SEEBECK, Respondent

Supreme Court of Idaho

September 25, 1911

MOTION TO DISMISS-APPEAL-MOTION TO STRIKE-REAL ESTATE-CONTRACT FOR SALE OF-STATUTE OF FRAUDS-CONTRACT IN WRITING-PART PERFORMANCE-EXCLUSION OF EVIDENCE-NONSUIT-CONSIDERATION-FORFEITURE OF CONTRACT.

(Syllabus by the court.)

1. Under the provisions of sec. 4809, Rev. Codes, the undertaking on appeal must be in writing, and if it be insufficient or defective in any respect, such insufficiency or defect must be deemed waived unless the respondent within twenty days after the filing of such undertaking shall file and serve upon the appellant or his attorney a notice in writing, pointing out specifically the defects or insufficiencies of such undertaking, and no such insufficiency or defect shall be subsequently urged against the undertaking.

2. Certain papers held not to be a part of the transcript.

3. Under rule 20 of the rules of this court, a paper when once inserted in the transcript must not be repeated unless the adverse party claims that such paper is incorrect as first inserted, and when found once in any part of the transcript it is sufficient to refer to it as having been already inserted therein.

4. Where K. made a contract with S. for the purchase of real estate and in pursuance thereof S. executed a bond for a deed to K., and K. thereafter did not meet the payments for said land as specified in the bond, and S. thereafter undertook to sell the land to other parties and an oral agreement was entered into between K. and S. that in case said land could be sold for the contract price between K. and S., S. would pay to K. the amount of money that he had already expended in making payments on said land, and the land was thereafter sold by S., and S. paid to K. $300 on said lastnamed contract, it was error for the court to reject evidence tending to show those facts.

5. Held, that said contract does not come within the provisions of sec. 6007, Rev. Codes.

6. Under the provisions of sec. 6008, Rev. Codes, the provisions of sec. 6007 must not be construed to abridge the power of any court to compel the specific performance of an agreement made in regard to the sale of real estate in case of part performance thereof.

7. Held, that there was a sufficient consideration for the contract sued on.

8. The mere fact that a contract in which time is made of its essence provides for a forfeiture upon failure to perform will not of itself cause a forfeiture of the contract by failure on the part of one of the parties to perform promptly according to its terms. There must be a declaration or some acts or conduct of forfeiture made by the party to the contract claiming the benefit of the forfeiture.

9. Held, that under the forfeiture clause contained in the bond the respondent did not exercise his right of forfeiture, and that he treated the contract or bond for a deed as though the same had not been forfeited.

APPEAL from the District Court of the Fourth Judicial District for Twin Falls County. Hon. Edward A. Walters, Judge.

Action to enforce a contract. Nonsuit granted and judgment of dismissal entered. Reversed.

New trial granted and cause remanded, with instructions. Costs awarded to appellant.

John E Davies, for Appellant.

Forfeitures are not looked upon with favor by the law, and in enforced the circumstances must be such as to preclude any waiver of the right to enforce the same. All of the conditions necessary to bring about a forfeiture must have been fulfilled, and the party claiming the benefit of a forfeiture must show himself to be clearly within the terms of the instrument, and he must act promptly in asserting his claim to a forfeiture. (Cue v. Johnson, 73 Kan. 558, 85 P. 598; Forest City Ins. Co. v. Hardesty, 182 Ill. 39, 74 Am. St. 161, 55 N.E. 139; Grigg v. Landis, 21 N.J. Eq. 494; Robinson v. Cheney, 17 Neb. 673, 24 N.W. 378; Gray v. Perry, 25 Ore. 1, 34 P. 691, 38 P. 1091; Missouri K. & T. Ry. Co. v. Pratt, 64 Kan. 118, 67 P. 464; Insurance Co. v. Norton, 96 U.S. 234, 24 L.Ed. 689; Knarston v. Manhattan Life Ins. Co., 124 Cal. 74, 56 P. 773.)

"A written contract may be waived either directly or inferentially, and such waiver may be proved by express direction, or by acts and directions manifesting an intention not to claim the supposed advantage, or by a course of acts and conduct, or by so neglecting and failing to act, as to induce a belief that it was the intention and purpose to waive." (Hilton v. Hanson, 101 Me. 21, 62 A. 797; Titus v. Insurance Co., 81 N.Y. 419; Hanley v. Association, 4 Mo.App. 253; Claudius v. West End Amusement Co., 109 Mo.App. 346, 84 S.W. 354; Clark v. West, 193 N.Y. 349, 86 N.E. 5; Polk v. Western Assur. Co., 114 Mo.App. 514, 90 S.W. 397; Sheldon v. Dunbar, 200 Ill. 490, 65 N.E. 1095; Henderson Bridge Co. v. O'Connor, 88 Ky. 303, 11 S.W. 18, 957; Gray v. Perry, 25 Ore. 1, 34 P. 691, 38 P. 1091.)

An estate or interest in lands is created or surrendered by operation of law, when the interest is created or surrendered by implication from the acts and conduct of the parties. Such inference may be drawn from anything which amounts to an agreement on the part of one of the parties to surrender his interest in the lands and of the other to take possession of the same. (Hart v. Pratt, 19 Wash. 560, 53 P. 711; Copper v. Fretnoransky, 16 N.Y.S. 866; Smith v. Pendergast, 26 Minn. 318, 3 N.W. 978.)

Part performance of an oral contract by one of the parties to it will also take it out of the operation of the statute, and especially is this true where a party has been put in possession of the lands with reference to which the contract was made. (Browder v. Phinney, 30 Wash. 74, 70 P. 264; Sathre v. Rolfe, 31 Mont. 85, 77 P. 431.)

A performance of such contract by one of the parties to it, so that it is wholly performed on his part, takes the contract without the operation of the statute of frauds. (Hill v. Den, 121 Cal. 42, 53 P. 642.)

Sweeley & Sweeley, for Respondent.

If the story of appellant is true, then instead of abandoning his contract he made a new deal with respondent, by which the respondent was to pay him a certain amount for a release of the land, and such a sale and release cannot be proved by parol, for evidence of a parol agreement to vary the terms of a written contract cannot be received, and a contract relating to the surrender or transfer of an interest in real estate is within the statute of frauds, and cannot be modified by parol. (Wigmore on Ev., sec. 2455; 11 Ency. of Ev. 262, 263; Swain v. Seamens, 9 Wall. (U.S.) 254, 19 L.Ed. 554; Abell v. Munson, 18 Mich. 306, 100 Am. Dec. 165, and note; Richardson v. Johnson, 41 Wis. 100, 22 Am. Rep. 712; Darling v. Butler, 45 F. 332, 10 L. R. A. 469; Esslinger v. Pascoe, 129 Iowa 86, 105 N.W. 362, 3 L. R. A., N. S., 147; Millard v. Hathaway, 27 Cal. 119, 144; Thill v. Johnston, 60 Wash. 393, 111 P. 225; Gallagher v. Mars, 50 Cal. 23.)

Part payment of the purchase price is not of itself sufficient part performance to warrant a decree for the specific performance of an oral agreement for the sale of land. (12 Ency. of Ev. 27, note 6, 28; 26 Am. & Eng. Ency. of Law, 54; Forrester v. Flores, 64 Cal. 24, 28 P. 107; Ross v. Cook, 71 Kan. 117, 80 P. 38; Thill v. Johnston, 60 Wash. 393, 111 P. 225; Davis v. Judson (Cal.), 113 P. 147; Cooper v. Colson, 66 N.J. Eq. 328, 105 Am. St. 660, 58 A. 337, 1 Ann. Cas. 997.)

A formal declaration of forfeiture was not necessary, and it was not required of Seebeck that he notify King of his intention to hold the bond forfeited. (Prairie Development Co. v. Leiberg, 15 Idaho 379, 98 P. 616.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J. , concur.

OPINION

SULLIVAN, J.

This action was commenced to recover the sum of $ 708.51 and interest on an alleged contract arising out of the following facts: On the 12th day of March, 1908, the respondent entered into an agreement with the appellant whereby he agreed to convey to him the southeast one-fourth of the southeast one-fourth of section 12, township 10 north, range 17 east, B. M., in Twin Falls county, the appellant agreeing to pay therefor the sum of $ 2,820 in installments. Said written contract contained, among others, the following provisions: "Failure to make said payments when the same should be made shall work a forfeiture of all previous payments, such payments to be held by the first party as rent for said premises, and without any recourse by the second party." The contract or bond for deed specified the dates and amounts of the payments as follows: $ 200, cash in hand; $ 625, May 21, 1908; $ 500, December 1, 1908; $ 500, June 1, 1909; $ 500, December 1, 1909, and $ 475, June 1, 1910. Said contract also required the appellant to pay all taxes and assessments and all payments required to be made on a water contract for said land. It appears that the appellant made the cash payment of $ 200 and the payment of $ 625, which matured May 1, 1908. It also appears that the appellant paid on the water contract covering the land $ 132.80 on June 12th, 1908, and on December 28th of the same year paid taxes amounting to $ 17.71.

The appellant has alleged in his complaint the execution and delivery of said bond for deed and the payments made by him thereunder; he further alleges that in the month of April 1909, the parties entered into an agreement whereby the appellant agreed to release the respondent from all the obligations of said bond or contract in consideration that the respondent pay or cause to be paid back to the appellant all of the moneys received by said respondent which had been paid by the appellant in connection with said contract, including the payments made to the respondent and the...