Prairie Development Co., Ltd. v. Leiberg

• Decision Date: 14 November 1908
• Citation: 15 Idaho 379,98 P. 616
• Parties: THE PRAIRIE DEVELOPMENT COMPANY, LTD., a Corporation, Respondent, v. JOHN B. LEIBERG and CARRIE E. LEIBERG, His Wife, F. A. BLACKWELL and Mrs. F. A. BLACKWELL, His Wife, Appellants
• Court: Idaho Supreme Court

98 P. 616

15 Idaho 379

THE PRAIRIE DEVELOPMENT COMPANY, LTD., a Corporation, Respondent, v. JOHN B. LEIBERG and CARRIE E. LEIBERG, His Wife, F. A. BLACKWELL and Mrs. F. A. BLACKWELL, His Wife, Appellants

Supreme Court of Idaho

November 14, 1908

WRITTEN CONTRACT-MODIFICATION-EXTENSION OF TIME FOR PAYMENT-SPECIFIC PERFORMANCE-RULE OF EVIDENCE.

1. Where time is made of the essence of a contract for the sale of real property, and the contract fixes the time and place of payment, the fact that a partial payment is made and accepted at a place other than that fixed by the contract will not constitute a modification of said contract as to the time and place of future payments.

2. Where time is made of the essence of a contract for the sale of real property, and the vendor extends the time within which a partial payment may be made, such fact, alone, will not amount to a modification of said contract as to future payments, or waive the conditions in said contract as to the time and place of future payments.

3. A written contract for the sale of real property may be modified by a subsequent oral agreement, but where it is claimed that an oral agreement modifies the terms of a written contract, the evidence to establish such oral agreement should be clear and satisfactory.

4. Where one seeks to enforce specific performance of a contract, such contract and the terms thereof should be established by clear and satisfactory evidence.

5. In an action for specific performance of a contract, the rule that a case will not be reversed where there is a substantial conflict of evidence must be taken and considered with that other rule that, to enforce specific performance, the evidence must establish such contract and the terms thereof clearly and satisfactorily.

6. A substantial conflict of evidence does not necessarily arise out of the fact that there is some evidence to support a contract in an action for specific performance, for in such action the contract and its terms must be established by clear and satisfactory evidence, and the conflict must be substantial in the light of this rule.

7. Where there has been a part performance of a contract to sell real property, and partial payments have been made, and a forfeiture of all that has been paid is insisted upon, a court of equity will turn to the party insisting upon such forfeiture and inquire whether his conduct was responsible for, or led the vendee to refrain from complying with the provisions of said contract, which resulted in the default.

8. Where there has been a part performance of a contract, and the failure of full performance was not the fault of the vendor, but was the result of the acts and solicitations of the vendee, and the conduct of the vendor in no way induced or misled the vendee, the mere fact that the vendor and vendee were negotiating with reference to the subject of said contract would not relieve the vendee from complying with the terms of said contract.

9. Where time is made of the essence of a contract for the sale of real property, the vendor will not be required to notify the vendee of his intention to declare a forfeiture unless payments be made in accordance with the provisions of said contract, before said vendor can insist upon and enforce a forfeiture of said contract.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District, for Kootenai County. Hon. W. W. Woods, Judge.

An action for the specific performance of a contract for the sale of real property. Judgment for plaintiff. Defendants appeal from the judgment. Reversed.

Judgment reversed. Costs awarded to the appellants.

John P Gray, for Appellants.

If it is doubtful whether an agreement has been concluded or is a mere negotiation, and unless the proof is clear and satisfactory both as to the existence of the agreement and as to its terms, chancery will not decree specific performance. (Dalzell v. Dueber Watch Co., 149 U.S. 320, 13 S.Ct 886, 37 L.Ed. 749; Carr v. Duval, 14 Pet. 79-83, 10 L.Ed. 361; Nickerson v. Nickerson, 127 U.S. 668-676 8 S.Ct. 1355, 32 L.Ed. 314; Hennessey v. Woolworth, 128 U.S. 438-442, 9 S.Ct. 109, 32 L.Ed. 500; Colson v. Thompson, 2 Wheat. 336-341, 4 L.Ed. 253.)

The specific performance of a contract resting either wholly or in part in parol will not be enforced upon a mere preponderance of testimony. The burden is upon the plaintiff to show clearly, definitely and conclusively a contract, leaving no jus deliberandi or locus penitentiae. (Purcell v. Miner et al., 4 Wall. 513, 18 L.Ed. 435; DeSollar v. Hanscome, 158 U.S. 216, 15 S.Ct. 816, 39 L.Ed. 950; Deeds v. Stephens, 10 Idaho 332, 79 P. 77, 78.)

Payment or tender within the time must be made in order to give the vendee under a contract of purchase any rights where time is of the essence of the contract. (Kelsey v. Crowther, 162 U.S. 404, 16 S.Ct. 808, 40 L.Ed. 1017; Kentucky Distilleries & Warehouse Co. v. Warwick, 109 F. 280, 48 C. C. A. 363; Whiteman v. Perkins, 56 Neb. 181, 76 N.W. 547; Emerson v. Slater, 22 How. 28, 16 L.Ed. 360; Smith v. Krall, 9 Idaho 538, 75 P. 263.)

Time is a material element of the contract when made of the essence thereof by the express stipulation of the parties, and cannot be extended except by writing. (Blood v. Goodrich, 9 Wend. (N. Y.) 68, 24 Am. Dec. 121; Cook v. Bell, 18 Mich. 391; Ladd v. King, 1 R. I. 224, 51 Am. Dec. 624; Stowell v. Robinson, 3 Bing. & C. 928; Steed v. Dauber, 2 Per. & D. 447; Marshall v. Lynn, 6 Mees. & W. 109; Clark v. Guest, 54 Ohio St. 298, 43 N.E. 862; Platt v. Butcher, 112 Cal. 634, 44 P. 1060; Atlee v. Bartholomew, 69 Wis. 43, 5 Am. St. Rep. 103, 33 N.W. 110; Hasbrouck v. Tappen, 15 Johns. 200; Abell v. Munson, 18 Mich. 306, 100 Am. Dec. 165.)

Frank T. Post, for Respondent.

The findings made by Judge Woods are sustained by a clear preponderance of the evidence. But, if that were not the fact, there being material evidence to sustain each finding, the question of preponderance is immaterial under repeated decisions of this court. (Heckman v. Espey, 12 Idaho 758, 88 P. 80; Robertson v. Moore, 10 Idaho 126, 77 P. 218; Stuart v. Hauser, 9 Idaho 71, 72 P. 719; Abbott v. Reedy, 9 Idaho 581, 75 P. 764.)

On May 16th the wife entered into an optional contract with a third party, without notice to the purchaser, and without giving the purchaser any opportunity of complying with the contract, and without tendering back to the purchaser the $ 6,500 received, or any part thereof. Such conduct does not appeal to a court of conscience, and will not prevent specific performance. (Cheney v. Libby, 134 U.S. 68, 10 S.Ct. 498, 33 L.Ed. 818; 6 Pomeroy's Eq. Jur., secs. 810, 816; Damon v. Cheney, 28 F. 500; Insurance Co. v. Eggleston, 96 U.S. 572, 24 L.Ed. 841; Camp Man. Co. v. Parker, 91 F. 705, 34 C. C. A. 55; O'Connor v. Hughes, 35 Minn. 446, 29 N.W. 152; Higinbotham v. Frock, 48 Ore. 129, 120 Am. St. Rep. 796, 83 P. 536; Eaton v. Schneider, 185 Ill. 508, 57 N.E. 421; Monson v. Bragdon, 159 Ill. 61, 42 N.E. 383; Watson v. White, 152 Ill. 364, 38 N.E. 902; Smith v. Krall, 9 Idaho 535, 75 P. 263.)

The contract in this case is not an optional contract, but a bilateral contract. The vendee agrees to buy and to pay the whole consideration. It is not intended that he may declare the contract void, or make it void by failure to pay. If the contract were to become absolutely unenforcible or void, or at an end at the election of the vendee by his failure to make such payment or perform some other covenant, then the contract would be merely a unilateral contract, or, in other words, an option granted to the vendee. (Mason v. Caldwell, 10 Ill. 196, 48 Am. Dec. 330; Wilcoxson v. Stitt, 65 Cal. 596, 52 Am. Rep. 310, 4 P. 629; Cartwright v. Gardner, 5 Cush. 281.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This is an action for the specific performance of the following contract:

"This contract, made and entered into this 26th day of December, A D., one thousand nine hundred and five, by and between Mrs. Carrie E. Leiberg and John B. Leiberg of the first part, and J. Grier Long, 'Trustee,' of the second part, witnesseth as follows, to wit:

"I. The party of the first part, for their heirs, executors and administrators, agree to sell to the party of the second part, all those certain pieces or parcels of land situated in the County of Kootenai and State of Idaho known and described as follows to wit: All of section (17) seventeen. All of section (3) three and the southwest quarter of the northwest quarter and lots numbered one, two, three and four of Section (2) two; all of the above land is in township fifty-three north of range two west of Boise Meridian in Idaho; also a fraction containing about seven acres and lying to the north of and adjoining the above described lands and the water rights on Vesta Creek, Cat Creek and Barker Creek.

"II. The party of the second part, for their heirs, executors administrators and assigns, agree to buy of the party of the first part said above described lands and to pay the party of the first part for the same the sum of ($ 41,000.00) forty-one thousand and no-100 dollars in the manner following to wit: Five hundred and no-100 dollars on delivery of this contract and the remainder, forty thousand five hundred dollars, to be paid in four payments as follows, to wit: Nine thousand five hundred dollars on or before May 1st, 1906; eleven thousand dollars on or before May 1st, 1909; ten thousand dollars on or before May 1st, 1911; ten thousand dollars on or before May 1st, 1913; deferred payments to bear 6 per cent interest per annum, all payments to be made at the office of Traders National Bank, Spokane, with interest thereon at the rate of 6 per cent per annum...