Libby v. Parry
| Decision Date | 22 June 1906 |
| Docket Number | 14,772 - (117) |
| Citation | 108 N.W. 299,98 Minn. 366 |
| Parties | ADDIE M. LIBBY v. EDWARD T. PARRY |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to enforce specific performance of a contract for the sale and conveyance of land. The case was tried before Dickinson, J., who granted a motion to dismiss the action on the close of plaintiff's testimony. From an order denying a motion for a new trial plaintiff appealed. Reversed and new trial granted.
Land Contract.
A certain instrument construed, and held to be, in its original form, an option for the purchase of real estate, but as afterwards modified it became a contract of purchase.
Specific Performance.
The contract not having been terminated by giving the notice required by chapter 223, p. 431, Laws 1897, and time not having been made the essence of the contract, the purchaser was entitled to maintain an action for specific performance although payments had not been made within the time limited. Evidence was introduced at the trial tending to show that appellant had not, prior to the commencement of the action, abandoned the contract, but had made preparation to perform the same.
Tender.
The contract was not indefinite in its terms upon the question of deferred payments and security, and, by pleading and making a proper tender of the money due and of a mortgage upon the premises for the deferred payments, appellant preserved her rights under the contract, although the time stated for such payment had expired.
Dismissal.
It was error to dismiss the action at the close of appellant's case, the evidence being sufficient to make out a prima facie cause of action.
Welch, Hayne & Hubachek, for appellant.
Edwin S. Slater, for respondent.
Respondent, a resident of Philadelphia, owned the premises in question, located in Minneapolis, and listed the same with the Tabour Realty Company for sale at a stipulated price. Appellant executed a written instrument November 28, 1904, agreeing to purchase the premises for $3,600, and $50 was acknowledged paid as earnest money and in part purchase, $450 to be paid on or before sixty days after date, and $3,100 on or before one year from the date of closing the deal, with interest at five per cent.; a complete abstract of title to be furnished, and all taxes then a lien on the property to be paid by the vendor. The writing also provided that, in case the title to the premises was not perfect, and could not be made so within sixty days from the date of the instrument, the agreement to be void and the $50 refunded, but, if the title was perfected and not taken within sixty days from the date thereof, the $50 to be forfeited. The instrument was signed by Edward T. Parry, by Tabour Realty Company, agents, and also by appellant. It was then forwarded to Mr. Parry at Philadelphia, who indorsed upon the agreement:
With the interest rate changed from five to six per cent., and with the understanding that purchaser assumes and agrees to pay taxes which accrue this winter. I hereby approve of the above contract.
Edward T. Parry.
The instrument was thereupon returned to Minneapolis and submitted to appellant, and she added the following:
I hereby approve of the modifications concerning rate of interest and payment of taxes of my contract for the purchase of lots one and two, in block seven, in Lakeview addition, Minneapolis, Minnesota, and agree to purchase said lots upon the conditions prescribed by said contract and the modifications thereof.
Addie M. Libby.
The record does not show the exact dates these changes were made and the writing finally executed, but, in pursuance of the contract, December 21, 1904, the vendor executed and forwarded to the Tabour Realty Company a deed to the premises conveying the same to appellant, and for a few weeks...
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