Michaels v. Barron

• Citation: 154 N.W. 254,31 N.D. 436
• Decision Date: 15 September 1915
• Court: North Dakota Supreme Court

154 N.W. 254

31 N.D. 436

WILLIAM C. MICHAELS, John Michaels, Herman F. H. Michaels, and Adolf F. Just v. GABRIEL BARRON

Supreme Court of North Dakota

September 15, 1915

Appeal from the District Court of Morton County; Nuchols, J.

Action to determine adverse claims to real estate. Answer setting up conditional contract of purchase, which provided for a cancelation of the contract at the option of the defendant or purchaser, and a claim of such cancelation, and the recovery of the amount paid, as a condition precedent to the quieting of the title.

Judgment for defendant. Plaintiff appeals.

Affirmed.

W. H Stutsman, for appellants.

Under a contract permitting purchaser to disaffirm if dissatisfied with his title, his good faith, and not the reasonableness of his dissatisfaction, is the test of his right. Sanger v Slayden, 7 Tex.App. 605, 26 S.W. 847.

A party may enforce his agreement as to time, because the parties are, as a rule, allowed to make such contracts as they please. Fargusson v. Talcott, 7 N.D. 183, 73 N.W 207.

Where a contract provides that a certain act be done before action can be brought,--a condition precedent to the bringing of such action,--the condition must be strictly complied with. White v. Mitchell, 30 Ind.App. 342, 65 N.E. 1061.

A party to a contract has no right to rescind his agreement until he has, as a condition precedent, strictly performed his part. Griffin v. Griffin, 163 Ill. 216, 45 N.E. 241; Wallace v. McLaughlin, 57 Ill. 53; Hunt v. Smith, 139 Ill. 296, 28 N.E. 809; Rev. Codes 1905, § 5249, Comp. Laws 1913, § 5805.

Parol evidence of a prior or contemporaneous agreement is inadmissible to vary the terms of a written contract. Te Poel v. Shutt, 57 Neb. 592, 78 N.W. 288.

The right to annual a contract for nonperformance of its terms by the contractors is lost where the employers are in default by failure to estimate and pay for work done and materials furnished by the contractors. O'Connor v. Henderson Bridge Co. 95 Ky. 633, 27 S.W. 251, 983; Graf v. Self, 109 N.Y. 369, 16 N.E. 551; Mason v. Edward Thompson Co. 94 Minn. 472, 103 N.W. 507; Provident Loan Trust Co. v. McIntosh, 68 Kan. 452, 75 P. 498, 1 Ann. Cas. 906; Prothro v. Smith, 6 Rich. Eq. 324; Gale v. Dean, 20 Ill. 320; Hopkins v. Shull, 2 Ohio Dec. Reprint, 272; Aikman v. Sanborn, 5 Cal. Unrep. 961, 52 P. 729.

A party cannot strictly enforce a contract while he himself is in default. Blewett v. McRae, 88 Wis. 280, 60 N.W. 258; Russ Lumber & Mill Co. v. Muscupiabe Land & Water Co. 120 Cal. 521, 65 Am. St. Rep. 186, 52 P. 995; State v. Winona & St. P. R. Co. 21 Minn. 472.

Hanley & Sullivan, for respondent.

After one party has performed the contract in a substantial part, and the other party has accepted and had the benefit of such part performance, the latter is precluded from relying upon the performance of the residue as a condition precedent to his liability. 9 Cyc. 645, 689.

Upon the vendor's electing to return the thing sold within the time specified, the vendor was bound to refund, and this though the vendee had given his obligation for the purchase money. Giles v. Bradley, 2 Johns. Cas. 253.

The plaintiff waived the time of performance on defendant's part, as to the breaking. Fargusson v. Talcott, 7 N.D. 183, 73 N.W. 207.

There has been substantial performance. Columbian Lyceum Bureau v. Sherman, 19 N.D. 58, 121 N.W. 765.

A false impression may be produced by words, acts, concealment, or suppression. Whether the plaintiff and his agent intended to defraud the defendant makes no difference. The results to defendant are the same. Liland v. Tweto, 19 N.D. 551, 125 N.W. 1032.

Courts of equity will carefully scrutinize contracts between persons occupying relations of trust and confidence, and if it appears that a contract was entered into through the exercise of undue influence by one upon the other, they will not hesitate to cancel such contract. Fjone v. Fjone, 16 N.D. 100, 112 N.W. 70; Bennett v. Glaspell, 15 N.D. 239, 107 N.W. 45; Sanger v. Slayden, 7 Tex. Civ. App. 605, 26 S.W. 847.

OPINION

Statement of facts by

BRUCE J.

This is an action to determine adverse claims to 400 acres of land in Morton county, the complaint being in the statutory form. The answer admits that the plaintiffs are the owners of the premises, but alleges a conditional contract of purchase by the defendant, and the payment of the sum of $ 2,000 and interest, which the defendant claims should be returned to him as a condition of quieting the title, it being his claim that according to the contract of purchase he had the option of canceling the contract and recovering back the money which he had paid. The findings of fact and conclusions of law of the trial judge were as follows:

Findings of fact: "1. That this is an action to quiet title to the premises described in the complaint, and to foreclose the defendant from any interest in said land, and to determine what rights or interest the defendant has in said tract, and to grant such general relief as may be just in the premises, and that by consent of counsel, the question of the right of the defendant to the return of the money claimed by him under his answer was tried and submitted to the court.

"2. That the title to the premises described in the complaint is in the plaintiffs, who are copartners; that the plaintiff Wm C. Michaels is the spokesman and general manager of the plaintiffs; that in the year of 1910, the plaintiffs and defendant entered into a written contract by the terms of which the plaintiffs agreed to sell to the defendant the following described premises, to wit: The south half of section 15; and the north half of the northeast quarter and the north half of the northwest quarter of section 22, all in township 140, north of range 84, west of the 5th P. M., in Morton county, North Dakota, in consideration of the sum of $ 2,000 that was paid to the plaintiffs on August 27, 1910, and in consideration of the further payment of certain deferred payments mentioned in the contract; that said contract also provided that the plaintiffs herein agreed to cancel the said contract and return to the defendant the amount paid by him on the contract, at or after ten days after November 1, 1911, upon written notice from the defendant and upon the defendant's returning to the plaintiffs a wagon which was delivered to the defendant by the plaintiffs at the time the contract was executed, and also upon the delivery by the defendant to the plaintiffs of 200 bushels of No. 1 wheat, and upon the defendant's breaking 40 acres on said premises prior to July 1, 1911; that time was not made the essence of said contract as to the returning of the said wagon or wheat, or as to the breaking of the said 40 acres; that at the time the defendant entered into said contract, he expressed doubts as to his desire or ability to purchase said land, and that the clause in said contract allowing him to cancel said contract and to recover back his money was put in the contract in order that the defendant might make a trial of said land for the term of a year, and at the end of that time be able to put himself back in his original position if dissatisfied.

"3. That the defendant went into the possession of the said land and commenced breaking thereon,...