Machold v. Farnan

• Decision Date: 08 February 1908
• Citation: 14 Idaho 258,94 P. 170
• Parties: CARL MACHOLD, Respondent, v. ROSA FARNAN, Appellant
• Court: Idaho Supreme Court

94 P. 170

14 Idaho 258

CARL MACHOLD, Respondent, v. ROSA FARNAN, Appellant

Supreme Court of Idaho

February 8, 1908

CONTRACT-SPECIFIC PERFORMANCE-TIME AS THE ESSENCE OF-WAIVER.

1. Where time is of the essence of a contract for the sale of real property, the vendee cannot enforce the contract by an action for that purpose, without tendering payment within the time and according to the stipulations of said contract.

2. In a contract for the sale of real property, where the time of payment is essential, and not simply material, the vendee cannot maintain an action to enforce the same without making an actual tender of the price and a demand for the deed within the time specified in the contract.

3. Courts of equity will not make contracts for parties nor alter those which the parties have deliberately made; and where it appears that the parties have in fact contracted for the sale of real property, and it is provided in the contract that if the purchaser make default in the payments, he will not be entitled to a conveyance, and it appears that the purchaser is without excuse for the delay, the courts will not relieve him from the consequences of his default.

4. Where parties by their contract have made time of the essence of their contract, the court will not decree a specific performance, where the party who applies for the same has omitted to execute his part of the contract within the time appointed, unless sufficient excuse for the delay appears.

5. Where a contract for the sale of real property fixes the time within which payment must be made, the failure of the vendee to make payments as provided in the contract, although through no fault of his, and even though he has used every means in his power to raise the money to meet the demands of the contract, is not a sufficient excuse to relieve him of the stipulations made in the contract as to the time of payment.

6. Where time is made the essence of a contract for the sale of real property, and the vendor extends the time within which payment must be made, upon condition that if payment is not made within the time to which the extension is granted the contract will be declared forfeited, and that the vendor would no longer recognize the contract as binding, it is not a waiver of the condition making time the essence of the contract, and will not preclude the vendor from insisting upon the payment being made within the time fixed in the contract and the extension of time for payment.

(Syllabus by the court.)

APPEAL from the District Court of Sixth Judicial District for Bingham County. Hon. James M. Stevens, Judge.

An action for the specific performance of a contract for the sale of real property. Judgment for plaintiff. Defendant moved for a new trial and appeals from the judgment and order denying a new trial. Reversed.

Judgment reversed and a new trial granted. Costs awarded to the appellant.

Clark &amp Budge, for Appellant.

There is no room for argument in this case as to the intent of the parties to make time of the essence of the contract; it is made clearly and unequivocally to appear in a special provision. When such a provision is a part of the contract courts of equity will not relieve a party thereto who fails to comply with the terms of the contract within the time limited. (Smith v. Krall, 9 Idaho 535, 75 P. 263; Brown v. Ulrich, 48 Neb. 409, 67 N.W. 168; Whiteman v. Perkins, 56 Neb. 181, 76 N.W. 547; Jewett v. Black, 60 Neb. 173, 82 N.W. 375; McKenzie v. Murphy, 31 Colo. 274, 72 P. 1075; Sowles v. Hall, 62 Vt. 247, 22 Am. St. Rep. 101, 20 A. 810; Kentucky Dist. & Wareh. Co. v. Warwick Co., 109 F. 280, 48 C. C. A. 363; Roberts v. Norton, 66 Conn. 1, 33 A. 532; Coughran v. Bigelow, 9 Utah 260 34 P. 51; Martin v. Morgan, 87 Cal. 203, 22 Am. St. Rep. 240, 25 P. 350; Garretson v. Vanloon, 3 G. Greene, 128, 54 Am. Dec. 492; Lockman v. Anderson, 116 Iowa 236, 89 N.W. 1072; Frey v. Camp, 131 Iowa 109, 107 N.W. 1106; Grey v. Tubbs, 43 Cal. 359.)

The rule as to equitable relief applies with the same force to an extension of time by the vendor as to the original contract. (Bennett v. Hyde, 92 Cal. 131, 28 P. 104; Woods v. McGraw, 127 F. 914, 63 C. C. A. 556.)

After default by one party, the other may, by notification extending the time of performance, declare time to be of the essence of the extension, and if the conditions are not observed strictly within the time limited by the extension, the party in default will not be relieved in equity for his failure. (Kirby v. Harrison, 2 Ohio St. 326, 59 Am. Dec. 677; Boldt v. Early, 33 Ind.App. 434, 104 Am. St. Rep. 255, 70 N.E. 271; Chabot v. Winter Park Co., 34 Fla. 258, 43 Am. St. Rep. 192, 15 So. 756.)

The burden was upon respondent to satisfactorily and reasonably account for his delays and apparent omissions. (Durant v. Comegys, 3 Idaho 204, 28 P. 425.)

Carl Machold, in propria persona, files no brief.

STEWART, J. AILSHIE, C. J., Sullivan, J., Concurring.

OPINION

STEWART, J.

This is an action for the specific enforcement of a contract, entered into between appellant and respondent on February 27, 1907, for the sale of certain lands situated in Bingham county, Idaho.

The contract provides that the party of the first part, in consideration of the covenants and agreements of the party of the second part, agrees to sell, and by good and sufficient warranty convey to the second party, and the second party agrees to buy certain land; and the second party agrees to pay the first $ 2,000 as the purchase price of said land in the manner following: The whole of said purchase price on or before three years after date hereof, with interest thereon of ten per cent per annum from date, interest payable annually.

The contract provides that the second party shall have possession as long as he complies with the terms of the contract, and keeps the buildings situated upon the land in good condition and in repair, and insured for not less than $ 500, payable to the party of the first part as her interest appears. The contract contains the following provision:

"It is expressly understood and agreed that time is of the essence of this contract, and in the event of the failure of the second party to comply with the terms hereof, or to pay the principal or interest when the same shall become due, and to pay the taxes as hereinbefore stated, the said party of the first part shall be released from all obligation, either in law or in equity, to convey the said property to the second party, and the second party shall forfeit all right thereto and to any improvements that he may have placed thereon, and to any money he may have paid under this contract in the option of the first party. And the first party upon receiving payment in the manner and at the time herein specified, and the second party having complied with the terms and conditions hereof, agrees to execute and deliver to the second party a good and sufficient deed conveying the premises hereinbefore described to the second party. The second party agrees that upon breach of the conditions hereof, or the failure to pay either the principal or interest or taxes and assessments, that he will within thirty days after notice on the part of the first party of her option to rescind the contract because of such breach, deliver to the first party peaceable possession of said premises and the whole thereof."

The complaint, after alleging the making of the contract in substance as set forth, alleges: "That on March 16, 1907, defendant notified plaintiff that the interest due on said contract was past due, and that the same must be paid by March 31, 1907, or defendant would no longer recognize said contract." The complaint then alleges that the plaintiff was a poor man, and owing to shortage of water, was unable to raise any profitable crops, and thereby it was impossible for him to raise the amount of interest and taxes which were in arrears on March 31, 1907, but alleges that on April 6, 1907, plaintiff did raise the necessary amount, and on the said day tendered to defendant the full amount due on the said contract, to wit, the sum of $ 2,000, the amount of the principal or purchase price; the sum of $ 223 as interest on the principal up to the date of tender; also the sum of $ 40, the amount paid by defendant for taxes, and $ 5 to cover the expense of the defendant in paying the taxes; and that defendant refused to accept the same and still refuses to accept the same and the payment of the same into the court for the defendant; that the failure to make the payment due on March 31, 1907, was through no fault of the plaintiff, as he did everything in his power to raise the money. Plaintiff then demands judgment that defendant execute to the plaintiff a sufficient conveyance of said property and costs.

It will be observed that the plaintiff is not seeking to establish any equitable interest he may claim in or to said premises or to discharge any lien the defendant may claim upon said premises or to declare the contract or transaction a mortgage, but that the action is one to enforce a contract to convey real property.

After the evidence was concluded, the court permitted the plaintiff to file an amended complaint in accordance with the facts as he claimed them to be. In this amended complaint the plaintiff alleged possession and residence on the land for nine years, his relation to this land prior to the time the defendant acquired title thereto, setting forth contracts to purchase with prior owners, and then alleges:

"That thereafter said property was sold to one John Millick, and said contract was surrendered and a new contract given to plaintiff under which plaintiff held the said property until the same was sold by said John C. Millick to the defendant...