Metzker v. Lowther
Citation | 69 Idaho 155,204 P.2d 1025 |
Decision Date | 18 March 1949 |
Docket Number | 7410 |
Parties | METZKER et ux. v. LOWTHER |
Court | Idaho Supreme Court |
Rehearing Denied April 27, 1949.
Rehearing Denied April 27, 1949.
Appeal from District Court, Seventh District, Canyon County; A. O Sutton, Judge.
See also 69 Idaho 115, 203 P.2d 604.
Judgement affirmed.
Jack Lowther, in pro. per., for appellant.
The stipulation in the contract that the respondents should furnish and tender to the appellant an abstract of title in thirty days showing a perfect title vested in the respondents was a condition precedent to any further performance by the appellant and was so understood by the parties, and a breach of that condition terminated the contract. Sorensen v. Larue, 43 Idaho 292, at page 301, 252 P. 494; Elson v. Jones, 42 Idaho 349, at page 353, 245 P. 95; Chamberlain v. Ivens, 36 Idaho 235, dissent at page 246, 210 P. 580; First National Bank of Idaho v. Reins, 42 Idaho 720, at page 725, 248 P. 9.
The respondents are bound by the terms of their own notices. Marks v. Strohm, 65 Idaho 623, at page 628, 150 P.2d 134.
The district court had no right to eliminate the importance of time and remake the contract. Machold v. Farnan, 14 Idaho 258, 94 P. 170; Allen v. Kitchen, 16 Idaho 133, 100 P. 1052, L.R.A.1917A, 563, 18 Ann.Cas. 914; Marshall v. Gilster, 34 Idaho 420, 201 P. 711; Sorensen v. Larue, 43 Idaho 292, 252 P. 494.
Cleve Groome, of Caldwell, for respondent.
A tender in writing of the abstract to the land in question is sufficient when no objection is taken thereto at the time. Section 16-1501, I. C. A.; Section 28-112, I. C. A.; Harding v. Home Investment & Sav. Co., 49 Idaho 64, 286 P. 920, 297 P. 1101; Boise Lumber Co. v. Independent School Dist. of Boise City et al., 36 Idaho 778, 214 P. 143.
In pleading the performance of a contract it is not necessary to set out in detailed facts the showing of the performance but it is sufficient to state generally that the party has duly performed all of the conditions on his part to be performed. Section 5-807, I. C. A.; Dewar v. Taylor, 43 Idaho 111, 249 P. 773; Idaho Irrig. Co. v. Pew, 26 Idaho 272, 141 P. 1099.
On November 13, 1943, Sam Metzker and Effie Metzker, his wife, plaintiffs and respondents, hereinafter in the statement of facts referred to as sellers, entered into written contract with Jack Lowther, defendant and appellant, hereinafter referred to as buyer, for the sale by them and the purchase by him of certain real property in Canyon County with livestock and other chattels thereon. Of the agreed consideration, $ 2562.50 was then paid; the balance payable $ 500 on or before November 5, 1944, and $ 400 on or before November 15th of each succeeding year until the full price with interest had been paid. The installment due in 1944 was to be and was evidenced by the promissory note of the buyer secured by mortgage upon one-half of the crops to be grown upon the premises during that year. This part of the transaction was involved in the case of Lowther v. Metzker decided at the present term but not yet officially published. Taxes and water assessments for the year 1943 and prior years were to be paid by the sellers, thereafter by the buyer. Agreeable to the contract, bill of sale to the chattels with warranty of title was executed and delivered to the buyer and warranty deed to the real estate was executed by the sellers and, with copy of the agreement, deposited with an escrow holder in Caldwell. The buyer was let into possession of the property, both real and personal. His possession was at all times undisturbed except by the sellers in enforcement of the contract.
The agreement contained the following provision upon which the parties place the conflicting interpretations hereinafter noticed:
"It is further agreed that the parties of the first part (sellers) shall within thirty days hereafter compile or cause to be compiled an abstract of title to the above described premises showing the title to said premises to be vested in them in fee free and clear of all liens, defects, and incumbrances and shall submit the same to the party of the second part (buyer) for examination and within twenty days thereafter the party of the second part shall examine or cause to be examined said abstract of title and point out any defects in the title to the said real estate as shown by said abstract which shall make it less than a title in fee free and clear of all liens, defects, and incumbrances, and the parties of the first part shall proceed immediately and pursue diligently to the correction of said defects and shall if necessary bring any action in a court of competent jurisdiction to secure such defects and such action if necessary to be brought shall be completed before the installment due on said contract shall be due in 1944."
The buyer was authorized, at the expense of the sellers deductible from the next installment becoming due, to correct the title if the sellers did not.
The contract further provided for forfeiture by the buyer and for redelivery of possession upon default in performance of any covenant, particularly of payment of purchase price, taxes and assessments, continuing for sixty days after notice of intention to forfeit had been given to him by the sellers. By general provision, apparently applicable to the covenants of both parties, time was expressly made of the essence.
An abstract of title was furnished within the thirty-day period and was promptly examined by an attorney acting for both parties. Several defects were said to be disclosed.
On the date of the contract the sellers were in possession of the land and chattels under contract to purchase from one Eunice McIntyre and had paid to the escrow holder the full amount of the purchase price to be paid to her for the property. However, some disagreements regarding title developed between the sellers herein and Eunice McIntyre. These differences were ultimately but not immediately adjusted. On April 26, 1945, deed dated March 16, 1943, executed by Eunice McIntyre conveying the property to the sellers was filed for record. The abstract of title was then extended and closed as of the former date.
The sellers had not in the meantime demanded payment of the installment recited by the contract to be payable in November, 1944, and the buyer had not performed even to the extent of paying taxes or water assessments.
On October 4, 1944, the buyer served upon the sellers and the escrow holder notice that by reason of fraud and misrepresentation he offered to return the property he had received upon the condition that the consideration paid by him and the $ 500.00 note signed by him be returned to him. He subsequently commenced in the district court his suit to rescind the transaction and to be placed in statu quo. He based his action upon alleged misrepresentations by Sam Metzker of the character and productivity of the land and the distance to underlying water table. The sellers resisted. Trial was had beginning on May 21, 1945, and the court on July 19, 1945, after finding that the buyer had purchased in reliance upon information obtained from personal examination and investigation by others for him and not upon any representation made by Metzker, signed decree in all respects favorable to the sellers and against the buyer. The decree was not attacked by appeal or otherwise.
On May 18, 1945, three days before the commencement of the trial referred to, the sellers caused to be served upon the buyer a written notice that the abstract of title had been prepared and was "tendered and offered" to him for examination. This notice will later be referred to in detail.
On July 19, 1945, the sellers caused to be served upon the buyer a "Notice of Intention to Declare Forfeiture" in which they pointed out, among other things, the failure of the buyer to make the payment stated in the contract to be due in November, 1944, failure to pay taxes and water charges and required performance within the period of sixty days under penalty of forfeiture. The buyer answered by denying that he had breached the contract in any way or that any obligation performable by him had become due and alleged that the sellers had violated the contract by failing to pay water assessments when due and had failed to correct the title or present abstract as provided in the contract; also that he was induced to enter the agreement by false and fraudulent representations. He warned the sellers not to trespass upon the premises or interfere with his possession. The sellers did not at that time press the matter.
On January 31, 1946, the sellers caused to be served upon the buyer a second notice of intention to declare a forfeiture in all respects similar to the notice of July 19, 1945, except that the failures of the buyer to make the payments due on November 15, 1945 and 1945 water assessments were listed as additional defaults. The buyer remained inactive.
The sellers then commenced this suit. They alleged full performance by them, the particular breaches by the buyer enumerated in their second notice, prayed that the buyer be given additional time in which to perform and, if his defaults continued, his interest in the contract and in the real property be forfeited and their title quieted. The personal property was not mentioned in the notices or in the complaint.
The buyer, then appearing by attorney, unsuccessfully moved to strike parts of the complaint and demurred to it. Subsequently he filed amended answer and cross complaint. His answer presented his defenses as follows: That on the date of the contract the property was owned by Eunice...
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