Levine v. Humphreys

• Decision Date: 05 March 1923
• Citation: 249 S.W. 395,297 Mo. 555
• Parties: PHILIP LEVINE, Appellant, v. ETHLYN HUMPHREYS
• Court: Missouri Supreme Court

249 S.W. 395

297 Mo. 555

PHILIP LEVINE, Appellant, v. ETHLYN HUMPHREYS

Supreme Court of Missouri, First Division

March 5, 1923

Appeal from St. Louis City Circuit Court. -- Hon. Granville Hogan Judge.

Reversed and remanded (with directions).

Taylor R. Young and P. H. Cullen for appellant.

(1) Equity holds time to be, prima-facie, non-essential, and will enforce the specific performance of agreements to convey land after the time for their performance has been suffered to pass by the party asking for the intervention of the court. 4 Page on Contracts, secs. 2105, 2106; Durant v. Comegys, 3 Idaho, 204; Brumfield v. Palmer, 7 Blackf. 227; Ewing v. Crouse, 6 Ind. 312; Keller v Fisher, 7 Ind. 718; Jones v. Robbins, 29 Me 351; Austin v. Wacks, 30 Minn. 335; Walton v. Wilson, 30 Miss. 576; Fletcher v. Wilson, Smedes & M. Ch. 376; Huffman v. Hummer, 17 N.J.Eq. 263; Grigg v. Landis, 19 N.J.Eq. 350; Pickering v. Pickering, 38 N.H. 400; White v. Butcher, 6 Jones Eq. 233; Frink v. Thomas, 20 Or. 265, 12 L. R. A. 239; D'Arras v. Keyser, 26 Pa. St. 249; Johnson v. McMullin, 3 Wyo. 237. (2) Time is not essential to such contract when the situation of the parties is unchanged, and the delay is reasonably excused, and the party in default manifests good faith, and is reasonably prompt and vigilant. Austin v. Wacks, 30 Minn. 335; Garretson v. Vanloon, 3 G. Greene, 128, 54 Am. Dec. 492. (3) Though time may be made of the essence of a contract for the sale of land by express agreement or reasonable construction, yet in the absence of express stipulation, courts ordinarily lean against such construction, for the reason that it would result in the enforcement of a penalty, and because interest is ordinarily treated as full compensation for the delay. Ellis v. Bryant, 120 Ga. 890; Frink v. Thomas, 20 Or. 265, 12 L. R. A. 239. (4) A condition in the contract that if the vendee complies promptly the vendor will execute a deed, does not make time of the essence of the contract, and a failure by the vendee to pay the purchase money when it falls due will not authorize the vendor to rescind without an offer to perform on his part. Jones v. Loggins, 37 Miss. 546; Coles v. Shepard, 30 Minn. 446.

Barney L. Schwartz and Arthur E. Haid for respondent.

(1) The contract sued on was a unilateral contract, or a mere option, and time was of the essence thereof. Hollmann v. Conlon, 143 Mo. 369; Dunaway v. Day, 163 Mo. 415; McQuary v. Missouri Land Co., 230 Mo. 342; Johnson v. Portwood, 89 Tex. 235; Wilbanks v. Selby, 227 S.W. 371. (2) A contract can legally be performed on a legal holiday, unless expressly prohibited by statute. Stewart v. Brown, 112 Mo. 171; Simmons v. Affolter, 254 Mo. 163; State v. Gould, 261 Mo. 694; Cartwright v. Liberty Telephone Co., 205 Mo. 126. (3) A tender of money in satisfaction of an obligation payable in money, to be unobjectionable, must be made in whatever form money is, at the time, legal tender for the payment of debts. 38 Cyc. 143; Thompson v. Royal Neighbors, 133 S.W. 150; Breed v. Hurd, 6 Pick. (Mass.) 356. (4) Tender must be kept good. 38 Cyc. 142, 158, 160; Voss v. McGuire, 26 Mo.App. 456. (5) A party is not entitled to the aid of a court of equity when that aid becomes necessary by his own fault. Hollmann v. Conlon, 143 Mo. 384; McQuary v. Missouri Land Co., 240 Mo. 361; Secret Service Co. v. Mfg. Co., 125 Mo. 156; Holgate v. Eaton, 116 U.S. 40; Cantwell v. Johnson, 236 Mo. 600.

Taylor R. Young and Abbott, Fauntleroy, Cullen & Edwards for appellant in reply.

(1) In an option contract, because of its one-sided nature, time of election is of the essence in equity as well as at law, whether expressly so stipulated or not, and that, therefore, the failure of the optionee to exercise his right of election and to give notice within the time stipulated in the option, or implied by law, ends his option rights. Dunaway v. Day, 163 Mo. 415. Our insistence is that the contract involved in this case is not an option, but is a contract of sale, and because it is a contract of sale the rule as to time being of the essence of it does not apply. That the contract in suit is a sale contract and not an option is conclusively established by Heman v. Wade, 140 Mo. 340. See also Rampton v. Dobson, 3 A. L. R. 569, where practically all the cases pointing out the difference between options and sale contracts are collected in an extensive case note entitled "Instances in which instrument has been held to be a contract of sale." (2) Since the law does not require anyone to do vain or useless things, a formal tender is never required where it appears that if it had been made, the money would not have been received, as where a creditor states that an actual tender will be useless because he will not accept it, or where one party to a contract states that he will not comply with its terms. Girard v. Car Wheel Co., 123 Mo. 358, 45 A. S. R. 556, 25 L. R. A. 514. Where a tender by check is made and refused on grounds other than that it does not constitute an offer of lawful money, the person so refusing will be held to have waived the objection to the medium of tender. (3) Even if tender was not made in proper form, plaintiff was not in default because defendant never tendered deed. McGrath v. Gegner, 77 Md. 331, 39 A. S. R. 415; Gunby v. Ingram, 57 Wash. 97, 36 L. R. A. (N. S.) 232; Comstock v. Lager, 78 Mo.App. 390; Pearson v. Millard, 150 N.C. 303; Boyden v. Hill, 198 Mass. 477; Burner v. Burner, 155 Va. 484; Favorite Carriage Co. v. Walsh, 71 Minn. 292; House v. Burr, 24 Barb. (N.Y.) 525.

BROWN, C. Small, C., concurs.

OPINION

BROWN, C.

This is an action in the nature of a suit in equity to enforce the specific performance of a contract for sale by the defendant to plaintiff of certain real estate in the city of St. Louis, known and described as number 455 Laurel Avenue. This contract, which is described in and filed with the petition, is as follows:

"St. Louis, Mo., January 24, 1920.

"Received of Mr. Philip Levine the sum of one hundred dollars as earnest money and part purchase money for a certain parcel of improved property, lying in the city of St. Louis, State of Missouri, in city block No . . . ., and having a front of thirty feet on the west side of Laurel Avenue by a depth of 120 feet, being the three-family apartment situated and known as 455 Laurel Avenue, which property is this day sold to Mr. Philip Levine for the total sum of twelve thousand, six hundred and twenty-five dollars, payable as follows: Five thousand, six hundred and twenty-five dollars cash, and balance of seven thousand ($ 7,000.00) dollars which is secured by a first deed of trust now on the property, to be assumed by the purchaser, with interest at the rate of six per cent, payable semiannually; said deferred payments to be secured by first deed of trust on said premises. The title to said property to be perfect, and to be conveyed by warranty deed, free from liens and encumbrances, except the taxes for the year 1920, and thereafter, and which the undersigned purchaser assumes and agrees to pay; also subject to restrictions recorded, rents, interest, water license, taxes and insurance to be adjusted to date of transfer of property.

"If upon examination the title be found imperfect, and cannot be perfected within a reasonable time, said purchaser is to be paid a reasonable cost of examining the title, and the earnest money is to be refunded.

"This sale under this contract to be closed on or before thirty days, at the office of Julius Haller Realty Company, and if not closed by that time, owing to the failure or neglect of the purchaser to comply with the terms herein, the above-mentioned earnest money is to be forfeited to Julius Haller Realty Company, but such forfeiture shall not release said purchaser herein from any liability for the fulfillment of this contract of sale, or the payments of money herein mentioned, if said seller shall elect to enforce fulfillment of the same.

"This sale under above terms and conditions is made subject to the approval of the owner of the property.

"Julius Haller Realty Co. (Seal), Agent.

"Per Arno W. Fowler,

"Accepted on above terms and conditions.

"Ethelyn W. Humphreys (Seal), Owner.

"Accepted on above terms and conditions.

"Philip Levine (Seal), Purchaser.

"I hereby approve the above contract dated January 24, 1920, and agree to pay two hundred dollars commission thereon.

"Ethelyn Humphreys."

The petition was filed in the trial court February 27, 1920. Its sufficiency is not questioned. It charges full performance on the part of plaintiff, including the tender to defendant of the sum of $ 5,625, which it alleges to be the full amount required by its terms to be paid her as a condition precedent to the execution of the deed required by its terms, and that she had failed and refused to perform the conditions on her part by the execution of such deed, and asks judgment against her accordingly. It also states that the plaintiff brings the money into court to abide its judgment. As no question is raised as to the sufficiency of the petition we have simply stated its legal effect in its application to the issues joined in this appeal. The answer, omitting formal parts, is as follows:

"Defendant for her answer to plaintiff's bill filed herein, denies that she executed contract in words and figures as set out in 'Plaintiff's Exhibit A,' but states and alleges the fact to be that on the 24th day of January, 1920, she entered into a written contract with said plaintiff by the terms of which, defendant, in consideration of the price therein mentioned, promised and agreed to convey to plaintiff premises known as 455 Laurel Avenue, St. Louis, Missouri, being property having the front of thirty feet...