Marks v. Strohm

• Decision Date: 27 June 1944
• Docket Number: 7141
• Citation: 150 P.2d 134,65 Idaho 623
• Parties: LEONARD J. MARKS and MARGARET MARKS, Appellants, v. G. W. STROHM and THELMA STROHM, Respondents and Cross-Appellants
• Court: Idaho Supreme Court

150 P.2d 134

65 Idaho 623

LEONARD J. MARKS and MARGARET MARKS, Appellants, v. G. W. STROHM and THELMA STROHM, Respondents and Cross-Appellants

No. 7141

Supreme Court of Idaho

June 27, 1944

1. Appeal and error

Specifications of error evidently intended to raise issue of insufficiency of evidence to support findings and judgment were considered as such, though they did not comply with requirements of rules. (I. C. A., sec. 7-509.)

2. Vendor and purchaser

Where contract for installment sale of land provided for written notice of termination of contract upon default setting forth such default, vendors were bound by terms of notice of termination stating that default consisted in failure to pay delinquent taxes on vendor's lands.

3. Vendor and purchaser

Trial court's findings with respect to course of dealings between parties to contract for installment sale of land and acceptance during trial of warehouse receipts tendered by purchasers justified conclusion that vendors had waived any default that had been made in delivery of warehouse receipts for two-fifths of annual crops to be credited on purchase price.

4. Vendor and purchaser

Where contract for installment sale of land indicated that purchaser should receive credit on purchase price for payment of mortgage on land and delinquent taxes, but not for payment of interest on mortgage on subsequently accruing taxes, and provided that purchaser after paying interest and taxes should pay vendors two-fifths of all crops, vendors were entitled to two-fifths of gross crops before payment of interest and taxes.

Appeal from the District Court of the Second Judicial District, for Latah County. Hon. A. L. Morgan, Judge.

Affirmed.

J. H Felton for appellants.

Although time may not be the essence of a particular contract, gross laches or calculated disregard of the contract is ground for rescission. (Barrows v. Harter, 130 P. 1051, 66 C. J. 751.)

Where time is of the essence and the contract is not kept in accordance with its terms, the contract is forfeited and it is not necessary to serve a notice upon the defaulter. (Prairie Development Co., Ltd. v. Leiberg, 15 Ida 379; Papesh v. Wagnon, 29 Ida. 93, 66 C. J. 751.)

Laurence E. Huff for respondents and cross-appellants.

Party to the contract claiming benefit of forfeiture must declare forfeiture in the manner provided in the contract. (King v. Seebeck, 20 Ida. 223, 118 P. 292; Hoebel v Raymond, 46 Ida. 55, 266 P. 433; Growers' Assn. v. Stroschein, 42 Ida. 12, 242 P. 444, 47 A. L. R. 916.)

The vendor, by his acts and conduct, may waive default. (Pease v. Teller Corp., 22 Ida. 807, 128 P. 981; Leaf v. Reynolds, supra.)

Vendor accepting payments after alleged default in contract, in which time is of the essence, waives default. (Berding v. Northwestern Securities Co., 36 Ida. 384, 211 P. 62; Boudreau v. Ibbetson, 123 Cal.App. 721, 12 P.2d 120; Jones v. Hert, 192 Ala. 111, 68 So. 259; Rubenstine v. Powers, 215 Mich. 434, 184 N.W. 589.)

Ailshie, J. Holden, C. J., Budge, Givens and Dunlap, JJ., concur.

OPINION

Ailshie, J.

May 1, 1937, Leonard J. Marks and Margaret M. Marks, appellants herein, entered into a contract with respondent, G. W. Strohm, whereby they agreed to sell and Strohm agreed to purchase a tract of land in Latah county, for which respondent agreed to pay the purchase price as follows:

". . . . the purchaser shall pay to the sellers after paying interest on the mortgage and taxes on the land, two-fifths of all crops raised on said land, including hay, and shall deliver to the sellers, after the payment of such interest and taxes, a warehouse receipt for two-fifths of all grain raised, and there shall be credited to the purchaser on the consideration the market price of such grain and hay at the time said receipt is delivered; and the purchaser shall pay at the next interest-paying date all delinquent and current payments due or accruing under the terms of the Federal Land Bank mortgage above described. The purchaser shall pay all delinquent taxes on the sellers' land, that herein described, and other lands, for the years 1934, 1935, and 1936, and all sums paid as such mortgage payments and taxes shall be credited on the purchase price herein. The purchaser shall pay all taxes levied and accrued upon the lands herein described for the year 1937 and subsequent years during the life of this contract.

"The purchaser shall have possession of all of said lands immediately, except nine acres and the buildings thereon until October 1, 1937, and twenty acres now seeded to wheat, both of which tracts the sellers reserve possession until October 1, 1937. . . ."

Respondent was let into possession of all the premises described except some buildings and nine acres of ground, which appellants retained possession of for approximately fifteen months thereafter, at which time they delivered possession to respondent.

The contract contained a forfeiture clause reading as follows:

"Time and performance are the essence of this contract and failure on the part of the purchaser to make the payments herein set forth by him to be made, or to perform any other agreement on his part to be performed, shall operate to terminate the contract, and in case of default agrees to surrender possession of said premises upon written notice from the sellers of the termination of the contract, setting forth such default, and upon such termination all sums theretofore paid by the purchaser under the terms hereof shall be and remain with the sellers as liquidated damages for failure to perform."

August 29, 1940, appellants served on respondent notice of forfeiture and cancellation of contract, stating the reasons for declaring the default and forfeiture as follows:

"This default as specified herein is as follows: failure to pay all delinquent taxes on the sellers' lands, those herein described, and other lands for the years 1934, 1936, 1938 and 1939."

May 8, 1942, appellants filed their complaint against respondent, praying that "the defendants may be required to set forth the nature of their claims; that all adverse claims of the defendants may be determined by a decree of this court; that the defendants be forever enjoined and barred from asserting any claim whatsoever in or to the said lands and premises adverse to the plaintiffs; and that defendants be enjoined from using said lands or any part thereof; . . . ." Demand was subsequently made for bill of particulars, which was furnished; and thereafter, September 3, 1942, amended complaint was filed, which was answered, and the case went to trial before the court without a jury. The court found, inter alia, and the evidence supports the finding, as follows:

"XI.

"Defendants have paid the payments of principal and interest, the Federal Land Bank, on the mortgage described in the contract promptly when due.

XII.

"That during the trial of the case, plaintiffs' attorney repeatedly offered to accept defendants tender of the warehouse receipts for two-fifths of the crops raised on the premises in the years 1940 and 1941, and stored in warehouses, being plaintiffs' Exhibits in Evidence Nos. Eleven (11), Twelve (12) and Thirteen (13) with the reservation, however, that the acceptance of such tender would in no way affect the rights of the plaintiff, and defendants' attorney upon each occasion refused to modify such tender in any way, and at the close...