Miller v. Jones

• Decision Date: 24 January 1911
• Citation: 71 S.E. 248,68 W.Va. 526
• Parties: MILLER v. JONES et al.
• Court: West Virginia Supreme Court

71 S.E. 248

68 W.Va. 526

MILLER v. JONES et al.

Supreme Court of Appeals of West Virginia.

January 24, 1911

Submitted June 5, 1909.

Rehearing Denied May 17, 1911.

Syllabus by the Court.

Where the vendor sells land by written contract providing for the payment of the purchase money in future installments, and for the making of a deed when all the purchase money is paid, and afterwards breaks and wholly repudiates his contract, the vendee may have specific performance immediately, and without waiting until the time of complete performance.

But he can only have performance according to the terms of the contract. The court cannot compel the vendor to receive the purchase money until it is due and payable according to the terms of the agreement.

Appeal from Circuit Court, Marshal County.

Bill by Wilson Miller against A. J. Jones and others. Decree for plaintiff, and defendant Jones appeals. Reversed and remanded.

Miller and Robinson, JJ., dissenting.

Simpson & Showacre, for appellant.

McCamic & Clarke, for appellee.

WILLIAMS P.

A. J Jones sold to George Downs a lot of ground in the city of Moundsville by written contract dated April 5, 1906. The consideration recited is $649.65, and is to be paid as follows: "Twenty-five dollars to be paid on the date of this agreement, and ten dollars on the last of each month until fully paid, with interest at the rate of 6 per cent monthly. A. J. Jones to make a warranty deed when the lot is paid for with interest." The contract further provides that: "Said Downs is to pay A. J. Jones the amount of money equal to city, county, and state taxes in addition to above stated amount. Said Downs is also to pay said Jones an amount of money in addition to the above which equals the city, county, and state tax on $610.00, for the year 1906 only." Downs did not make the cash payment, but he did make five payments of $10 each on this purchase, the last one on June 16, 1906. On September 1, 1906, Downs assigned his contract to Wilson Miller, the plaintiff. Jones refused to recognize the rights of the assignee, and refused to carry out his contract, and Miller sued to have it specifically enforced. On the 9th of March, 1908, the circuit court of Marshall county decreed relief to plaintiff, and from that decree Jones has taken this appeal.

Counsel for appellant contend that the suit was prematurely brought; that specific performance could not be had until the time arrived for the complete execution of the contract by the making of a deed by the vendor; that the time for appellee to demand his deed had not arrived. We do not so understand the law. A party to a contract enforceable in equity may sue to establish his rights thereunder as soon as the other contracting party has repudiated it, notwithstanding the time for full performance may not have arrived. In the present case, Jones is not required to make a deed for the land until all the payments are made; and the last payment is not due until about five years after the suit was brought. There was nothing for Jones to do in the meantime except to receive the payments as they became due. This he refused to do and declared that he would not carry out the agreement. Plaintiff, therefore, had a right to sue to compel defendant to maintain the contractual relation until the time for executing the deed should arrive. It is very probable that under such conditions his failure to sue promptly after knowledge of the breach would be construed by a court of equity as an acquiescence in the breach and as an abandonment of his right. The following cases support the proposition that suit may be brought as soon as the contract is wholly broken, even though the time for complete performance has not arrived. Roehm v. Horst, 178 U.S. 1, 20 S.Ct. 780, 44 L.Ed. 953; White v. Dobson, 17 Grat. (Va.) 262; James v. Kibler's Adm'r, 94 Va. 165, 26 S.E. 417; Lee v. Mutual, etc., Ins. Ass'n, 97 Va. 160, 33 S.E. 556; James v. Adams, 16 W.Va. 245; Davis v. Grand Rapids, etc., Co., 41 W.Va. 717, 24 S.E. 630; Pancake v. George Campbell Co., 44 W.Va. 82, 28 S.E. 719. Most of the above cases were actions at law for damages for breach of contract; but we do not perceive that any different rule applies in equity, provided the contract is such an one as equity can and will enforce specifically. In case of such a contract the injured party may elect his remedy, he may either sue at law for the breach, or he may sue in equity for specific performance. Pomeroy's Spec. Per. of Con. § 4; 36 Cyc. 747.

Hochster v. De La Tour, 6 Eng. Rul. Cases 576, is a leading English case on the question of the right to maintain an action for the anticipatory breach of a contract, and the principle announced in that case has been followed by our own court in James v. Adams, supra, and in Pancake v. George Campbell Co., supra. In Hochster v. De La Tour, supra, plaintiff had employed defendant for three months beginning June 1, 1852, at a certain price per month to travel with him, as courier. He repudiated the contract of employment before the time had arrived for plaintiff's services to begin. Plaintiff immediately brought his action, and in his declaration alleged that defendant had wholly refused to employ him and wholly discharged him from the performance of the contract and from being ready and willing to perform it. Upon a motion in arrest of judgment, the court held that: "After the refusal by the defendant to employ, the plaintiff was entitled to bring an action immediately, and was not bound to wait until after the day agreed upon for the commencement of performance had arrived." In Davis v. Grand Rapids, etc., Co., 41 W.Va. 717, 24 S.E. 630, the principle was announced as follows in point 1 of the syllabus: "Where a party to a contract notifies the other that he does not intend to abide by or perform it, the other may bring an immediate suit for such damages as he may thereby have sustained, without waiting for the time of performance to...