Pegg v. Olson

• Citation: 31 Wyo. 96,223 P. 223
• Decision Date: 18 February 1924
• Docket Number: 1116
• Parties: PEGG v. OLSON
• Court: United States State Supreme Court of Wyoming

223 P. 223

31 Wyo. 96

PEGG v. OLSON

No. 1116

Supreme Court of Wyoming

February 18, 1924

APPEAL from District Court, Big Horn County; HARRY P. ILSLEY, Judge.

Action by Georgia Pegg and another against Charles Olson for specific performance of an executory contract for the sale and purchase of land.

Reversed and Remanded with Directions.

R. B West and Brome & Hyde, etc. for Appellants.

The action is for specific performance of a contract for the sale of land; the trial court held that the contract was so indefinite and uncertain that it could not be enforced; Olson went into possession of the land and farmed it after the contract was made and has retained possession ever since; his statement of inability to procure a loan and that appellants failed to furnish an abstract and deed is not sustained by the evidence. Appelants were at all times ready to perform no tender of purchase money is necessary to a party who repudiates his contract, Cheney v. Libbey, 134 U.S 68; Rockland v. Leary, 203 N.Y. 469; there was a waiver of tender, 25 R. C. L. 218; specific performance will be decreed where the intention of the parties can be ascertained, 25 R. C. L. 218.

Thomas C. Marshall and C. A. Zaring for Respondent.

The contract fixes no time for payment or performance, it was made on condition that respondent could obtain a Federal loan; both parties realized that; specific performance will require performance upon terms agreed upon, 23 Stand. Ency of Pro. 1005, but the contract must be complete and free from doubt, 25 R. C. L. 218; Freeburgh v. Lamoureux, 15 Wyo. 22, 85 P. 1054; Moore v. Galupo, (N. Y.) 55 A. 628; Magee v. McManus, (Cal.) 12 P. 451; Burnett v. Kullak, (Cal.) 18 P. 401; specific performance is granted or withheld as equity and justice seem to demand in view of all the circumstances of the case, Merrill v. Cattle Co., (Wyo.) 181 P. 963.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action for specific performance. Plaintiffs, who are husband and wife, and defendant Olson were neighbors, the former living on the land hereinafter referred to and the latter living on the quarter section of land immediately to the west of plaintiff's land. Both tracts of land had been taken up by the respective parties under the so-called Carey Land Act, and at the time that the contract hereinafter mentioned was entered into, the title to plaintiffs' land was not complete, but the requirements to make it so were known to all of the parties. On February 13, 1920, the parties hereto entered into a contract which, aside from the acknowledgment, is as follows:

"KNOW ALL MEN BY THESE PRESENTS:

"WITNESSETH, that Mrs. Georgia Pegg and Milo M. Pegg of Emblem Wyoming hereby agrees to sell to C. S. Olson of Greybull, Wyoming the West One-Half (W 1/2) of the North East Quarter (NE 1/4) of Section Seventeen (17) of Township Fifty-two (52) North of Range Ninety-five (95), West of the 6th Principal Meridian in Big Horn County, Wyoming, for the consideration of Six Thousand and Four Hundred and no/100 Dollars payable as follows: Five Hundred Dollars cash receipt of which is hereby acknowledged, the balance to be paid as soon as C. S. Olson, second party above, can get a loan through from the Government and when Mrs. M. M. Pegg, the first party above mentioned, has a perfect title to the land from the State and then gives the said purchaser a good Warrantee Deed with an Abstract showing such perfect title. The unpaid balance above to draw interest at the rate of which purchaser will be required for the loan he makes from the Government or any other source.

"The purchaser herein to have possession from this date. Any loss by fire or natural loss from this date is understood to be purchasers loss.

"The purchaser is to pay all water assessments for the year 1920, and also taxes for the year, 1920.

"First party to clear up and pay all incumbrances and liens of whatever kind or nature, viz, the above mentioned $ 6400.00 is to clear up everything that may be against said land except whatever may be due from date of Deed on Drainage bonds.

"Dated this 13th day of February, 1920. (italics are ours.)

Georgia Pegg

Milo M. Pegg

Charles S. Olson."

Possession of the land mentioned in said contract was taken by defendant immediately, and during such possession he expended, if we take the allegation in defendant's answer herein as true, the sum of $ 578 for water and drainage assessments against said land, and he also made improvements thereon of the value of $ 500 more. In March, 1921, plaintiff Milo Pegg and defendant had a talk in which the latter indicated his desire to have the contract above mentioned cancelled. On April 23, 1921, however, he made an application to the Federal Land Bank of Omaha for a loan of $ 8000 to cover both the tracts of land heretofore referred to, and other land, a total of about 370 acres, stating in said application that one of the purposes of the loan was the purchase of the lands of said plaintiffs. It does not plainly appear when the application was acted on, but judging from the notations thereon, it was not until after the month of June, 1921, and it was probably between that time and January 16, 1922, that the loan was rejected. The reasons for that action are stated in the following evidence of witness Corey, Attorney for said Federal Land Bank:

"Q. For what reasons did you report or rule that the applicant was ineligible?

A. Because the applicant's own statement showed he rented the land on a crop share basis; that he owned no machinery or farm implements; that he did not have livestock adequate for the farming of the land; that he did not reside upon the land, and that he was engaged in an occupation other than farming, to-wit: he stated that he was in charge of a pumping station, which I assume was at Greybull, Wyoming.

Q. Why did that make the applicant ineligible?

A. Under the terms of the Federal Farm Loan Act we may make loans only to actual farmers.

Q. Would this loan have been an eligible loan providing this man, the applicant, had been residing upon the farm at that time and actually engaged in farming the land?

A. Yes, it would have."

The testimony shows that defendant moved away from his land in June, 1921, although in the loan-application aforesaid defendant had already given his residence as Greybull. It does not appear whether any efforts were made by defendant, other than the making of said application, in order that he might obtain a loan from said Federal Land Bank or from some other source. Sometime in June, 1921, probably prior to the time that the application for a loan was rejected, plaintiff Milo Pegg went to the defendant concerning the performance of said contract. Defendant apparently refused to do anything, stating: "If you can get anything out of it, go to it." On January 16, 1922, defendant served on plaintiffs the following written notice:

"Greybull, Wyoming, January 16, 1922.

To Georgia Pegg and Milo M. Pegg,

Basin, Wyoming:

You and each of you are hereby notified that, under your agreement dated the 13th day of February, 1920, for the sale of the West Half (W 1/2) of the Northeast Quarter (NE 1/4) of Section Seventeen (17), Township Fifty-two (52) North of Range Ninety-five (95) West of the Sixth P. M., in Big Horn County, Wyoming, you have wholly failed to furnish an abstract of title and warranty deed and otherwise carry out the terms of said contract, and that, by reason of such default, I have been and am unable to carry out the provisions upon my part to obtain the money and I therefore, declare the said contract rescinded and you are hereby notified that I have elected to and do declare the said contract cancelled and shall forthwith surrender up all possessions, claims and rights in and to the premises aforesaid.

(Signed) Charles S. Olson."

The evidence, however, shows that the title of plaintiffs was complete at the date last mentioned and for some time prior thereto, and that Milo Pegg informed defendant to that effect. Plaintiffs, in their petition, pleaded said contract; their own readiness to perform, the refusal of defendant to do so, the fact that defendant had not attempted in good faith to obtain a loan from the Government of the United States, and asked to recover from the defendant judgment for the sum of $ 5900 with interest from February 13th, 1920; and that defendant be compelled to accept a warranty deed and abstract of title for said land as mentioned in said contract, or that plaintiffs be permitted to deposit same with the clerk of the district court for the use and benefit of defendant, and for equitable relief. The lower court entered judgment for defendant, from which plaintiffs appeal. It may here be added that the evidence in the record shows that the rate of interest on loans made by the Federal Land Banks is six per cent per annum.

1. Counsel for defendant, to uphold the judgment of the trial court, contend that the clause in the contract providing that the balance of the purchase price should be paid "as soon as" C. S. Olson could get a loan from the Government is a condition precedent, which has not happened and no liability, therefore, exists. Courts are agreed that if the existence of the debt is conditioned upon the happening of an event, it cannot become enforceable until the event happens. But the rule is also well settled that if there is a debt actually in existence and payment is merely postponed until the happening of an event which does not happen, the law requires payment to be made within a reasonable time. 13 C. J. 631, 684; Page on Contracts (2nd Ed.) Sec. 2100, summarizes the holding of courts on this question as follows:

"The time of...