Rogers Bros. Coal Company v. Day
| Decision Date | 27 January 1928 |
| Citation | 222 Ky. 443 |
| Parties | Rogers Bros. Coal Company v. Day, et al. |
| Court | United States State Supreme Court — District of Kentucky |
3. Vendor and Purchaser. — Agreement that survey of land purchased was to be made by purchaser within the year 1917, and, if not, purchaser was to take and pay for land at stipulated acreage of 800 acres, held express stipulation that time given for making survey should be regarded as essence of contract.
4. Vendor and Purchaser. — Where contract dated August 29, 1917, for sale of land of unknown acreage provided that, if purchaser elected to make survey, survey should be made within year 1917, purchaser was not excused from performance of its agreement to make survey during that year by act of God, alleged to be excessive cold weather preventing making of survey.
5. Vendor and Purchaser. — Where contract dated August 29, 1917, for sale of land of unknown acreage provided that, if purchaser elected to make survey, survey should be made within year 1917 or acreage was to be accepted at stipulated figure of 800 acres, evidence that purchaser did not commence survey until October 17, 1917, and employed only one surveyor held not to show its good-faith effort, so as to excuse it from non-performance because of subsequent cold weather preventing survey.
6. Specific Performance. — Equity will decline to decree specific performance, if it would work hardship or injustice on defendant or operate oppressively.
7. Specific Performance. — Rule that harsh and oppressive consequences will defeat award of equitable relief of specific performance is inapplicable, except where such consequences were not within contemplation of parties at time of making contract sought to be enforced.
8. Vendor and Purchaser. — Where consequences of taking unknown acreage of land at agreed acreage of 800 acres and paying for it at stipulated price was within contemplation of parties at time contract was made, purchaser could not complain, in vendor's suit for balance of purchase money on basis of 800 acres at agreed price, that consequences of its contract were not within reasonable contemplation of parties, so as to entitle defendant to invoke rule that specific performance will not be decreed, where it will work hardship or injustice.
Appeal from Pike Circuit Court.
NEWTON BELCHER and ROSCOE VANOVER for appellant.
MOORE & CHILDERS for appellees.
Affirming.
On August 29, 1917, Effie P. Day and her husband, P. W. Day, jointly owned a one-fifth undivided interest in and to a large tract of land in Pike county, which is referred to in this record as the "Long Branch" tract. Adjoining it in the same county was another large tract referred to in this record as the "Victoria Williamson" tract, and both of which appear to have been formerly owned by one Benjamin F. Williamson. On the day referred to the appellees (to whom we shall hereafter refer as plaintiffs) and the appellant (to whom we shall hereafter refer as defendant), Rogers Bros. Coal Company, entered into a written contract by which plaintiffs agreed to sell and convey to defendant their undivided one-fifth interest in the Long Branch tract, and in which defendant agreed to pay plaintiffs therefore the sum of $50 per acre. At that time the precise acreage of the entire tract, and consequently the acreage of plaintiffs' aliquot part thereof, were unknown, and in view of that fact the contract said:
Defendant also agreed in the contract to pay plaintiffs at that time the sum of $20,000, which it did, and further agreed to pay the balance within 4 years thereafter, with interest from September 3, 1917, for which it was to execute its note. On January 2, 1918, plaintiffs demanded the execution of the note pursuant to the terms of the written contract, but defendant objected upon the ground that it had not surveyed the land. Plaintiffs thereupon called its attention to the contract whereby it only had the privilege of ascertaining the true acreage by survey during the year 1917, and insisted, that, defendant not having exercised it, the land should be taken and settled for at the agreed acreage of 800 acres, but which defendant at that time refused to do. In the meantime, and on November 28, 1917, at the request of defendant, plaintiffs executed and delivered to it their deed conveying their one-fifth interest, and at that time a collateral contract was executed whereby plaintiffs agreed not to retain a lien in the deed on the land for the balance of the purchase money, and defendant agreed therein to execute a note therefore, indorsed by Fon, Lon, and J.L. Rogers, and all of which was to be done "as per agreement heretofore given."
Nothing was done after January 2, 1918, until September 2 of that year, when defendant wrote plaintiffs a letter, in which it inclosed its check for $802.95, in payment of what it claimed was the first year's interest on the deferred payment, and which was calculated upon an acreage that it said was ascertained from a completed survey made in 1918, whereby the amount of land sold was found to be 667.65 acres, which at the price of $50 per acre would aggregate the total sum of $33,382.50, leaving a balance of purchase money due thereon of $13,382.50, and upon which the tendered interest check was calculated. On the next day (September 3, 1918) plaintiffs wrote defendant a letter in which it refused to accept the check and returned it therein. In that letter it was insisted by plaintiffs that the interest due was $1,200, and specific attention was again called therein to the terms of the contract, supra, in which it was specified and agreed that the survey if made by defendant should be done in the year 1917, and, if not, then the land should be accepted and paid for upon the agreed acreage of 800 acres. No reply to that letter seems to have been made by the defendant, but on September 18, 1920, it wrote one (signed by Fon Rogers, as president) to plaintiffs in which it inclosed its check payable to them for $13,382.50 (based upon the calculation of 667.65 acres) and interest thereon from September 3, 1917, amounting to $1,976.15, a total aggregate of $15,358.65. A part of that letter said:
Plaintiffs thereupon accepted the check and afterwards brought this action against defendant to recover the balance of the purchase money calculated upon the basis of 800 acres at the agreed price of $50 per acre, and upon trial the court (the action having been brought and heard in equity) sustained the prayer of the petition and rendered judgment in favor of plaintiffs for the difference between the amount of the check sent plaintiffs of September 18, 1920, and $20,000, with accumulated interest, and to reverse it defendant prosecutes this appeal.
A number of grounds for reversal are argued in briefs of counsel for defendant, but we deem none of them of sufficient substantiality to require consideration or discussion by us except (1), that time was not of the essence of the contract to sell, of date August 29, 1917; but, if mistaken in this, then (2), that defendant was excused from making the survey within the time stipulated in the contract through an act of God, which as alleged was excessively cold weather preventing it from doing so, and that it made the survey as soon thereafter as practicable; and (3), that, if neither ground (1) nor (2) should prevail, then this action is one in all respects for specific performance, and under the rules governing the application of that remedy plaintiffs are not entitled to recover — each of which will be discussed and determined in the order named.
1. The general rule, long since declared and followed by the courts, is that, at law, time is of the essence of the contract, but that generally it is not so regarded in equity. In the latter forum the question is viewed from the standpoint of the intention of the parties as gathered from the particular involved contract, and, unless the intention to make time the essence of the contract is clearly expressed, or necessarily implied, it will not be so regarded. 6 R.C.L. 898, par. 285. However, in the same text the learned compilers state the universal rule to be that.
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