Peryer v. Pennock

• Decision Date: 04 October 1921
• Citation: 115 A. 105,95 Vt. 313
• Parties: HENRY PERYER v. EDMUND M. PENNOCK ET UX
• Court: Vermont Supreme Court

115 A. 105

95 Vt. 313

HENRY PERYER v. EDMUND M. PENNOCK ET UX

Supreme Court of Vermont

October 4, 1921

February Term, 1921.

APPEAL IN CHANCERY. Bill for the specific performance of a contract to convey land and for damages arising from certain acts of the defendants which made them unable to comply with the provisions in the contract for the conveyance by them to the plaintiff of a right of way over other land. Heard on the pleadings and an agreed statement of facts at the March Term 1920, Rutland County, Wilson, Chancellor. Decree for the plaintiff for specific performance and for the recovery of damages. The defendants appealed. The opinion states the case.

Decree reversed and cause remanded with leave to plaintiff to apply, and for further progress. Let defendants recover their costs in this Court.

Lawrence Lawrence & Stafford and Asa S. Bloomer for the defendants.

Wing & Morse and William E. Dever for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, and MILES, JJ., and FISH, Supr. J.

OPINION

WATSON

The decree rendered below cannot stand for at least two substantial reasons. First. It seems to have been rendered on the basis of a wrong interpretation of the land contract as to the terms of payment. The agreed purchase price is one thousand dollars payable, one hundred dollars on the day of the execution of the contract, and one hundred dollars annually thereafter until fully paid, all moneys due and unpaid to draw interest at the rate of five per centum per annum; and when five hundred dollars has been paid together with interest thereon, the defendants will convey the premises to the plaintiff or to whomever he may direct and receive a mortgage for the sums then remaining unpaid.

The plaintiff contends that under the foregoing provisions he had the right to make payments at any time before the stipulated annual payments aggregate the sum of five hundred dollars, and that when the payments in fact made aggregated that sum together with interest thereon, he was entitled to a conveyance of the premises, and defendants were to receive the mortgage securing the sums remaining unpaid. The defendants, contending to the contrary, say that the plaintiff had no right to make payments oftener nor in larger sums than one hundred dollars per annum, and that only when five hundred dollars with interest thereon has been so paid are they bound to convey the premises and receive a mortgage for the amount remaining unpaid. We think defendants are right in this contention. The word whenever, says Webster's New International Dictionary, means at whatever time. But it must be interpreted in connection with the provision that the payments shall be made in the sum of one hundred dollars annually, and when thus interpreted it clearly refers to the time when the sum of five hundred dollars shall have been so paid, or sooner, if the times of payment are anticipated by the plaintiff with defendants' consent. A creditor can no more be compelled to accept payments on a contract before, by the terms thereof, they are due, than can a debtor be compelled to make such payments before they are due. The time of payment fixed by the terms of a pecuniary obligation, is a material provision, and each party has the right to stand on the letter of the agreement and perform accordingly. Saunders v. Frost, 22 Mass. 259, 16 Am. Dec. 394; People v. O'Brien, 111 N.Y. 1, 18 N.E. 692, 2 L.R.A. 255, 7 Am. St. Rep. 684; 26 R. C. L. 634, § 14. And where the payments are to be made in installments on days specified in the obligation, such payments cannot be made before those days severally, without consent of the person to whom due. Ebersole v. Redding, 22 Ind. 232. But the person to whom a payment is to be made, may waive his right as to time, and accept payment before maturity. Pyross v. Fraser, 82 S.C. 498, 64 S.E. 407, 23 L.R.A. (N.S.) 403, 129 Am. St. Rep. 901, 17 Ann. Cas. 150. It follows that the plaintiff's contention that immediate performance of the contract to convey should be decreed upon the payment of three hundred dollars with interest from June 19, 1919, cannot be sustained; for that sum was not due under the terms of the agreement when this suit was brought, and the record does not show consent by defendants to receive payment of any of the installments before due. Ellis v. Craig, 7 Johns. Ch. 7.

However, with the proper interpretation of the contract established, the bill and answer show no difficulty between the parties in regard to performance in this respect. The plaintiff alleges in his bill that he is ready and willing to perform in accordance with the terms of the contract, including the payments to be made thereon; but that defendants repudiate the...