Schmidt v. Scandinavian Canadian Land Company
| Decision Date | 02 February 1917 |
| Docket Number | 20,089 - (219) |
| Citation | 161 N.W. 218,136 Minn. 14 |
| Parties | PETER SCHMIDT v. SCANDINAVIAN CANADIAN LAND COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to obtain a warranty deed of the land conveyed by plaintiff to defendant to recover $1,239.80 and to cancel a land contract between the parties. The case was tried before Waite, J., and a jury which answered in the affirmative the special interrogatory whether the original of Exhibit F was mailed to and received by defendant, and answered in the negative the one whether after the receipt of that exhibit an attempted rescission of the contract was waived by plaintiff. The court made findings and ordered judgment forbidding defendant to declare the contract forfeited within 30 days, and for the dismissal of the action in case defendant within that time should tender to plaintiff a sufficient conveyance of the property and plaintiff should refuse to pay therefor the sum of $7,735. From an order denying his motion for a new trial, plaintiff appealed. Reversed.
Vendor and purchaser -- deed from third person -- waiver.
1. Where the vendee acquiesces in the proposition of the vendor to furnish a deed executed by a third party, he waives his right to insist upon a deed executed by the vendor.
Vendor and purchaser -- demand for performance -- rescission by vendee.
2. For more than a year, the vendee kept his money on deposit at the place of payment ready for the vendor at any time, and at short intervals repeated his demand upon the vendor for the deed, and each time received an assurance that it would soon be ready, the vendee then withdrew his money and notified the vendor that he rescinded the contract for the failure of the vendor to perform. Held that the conduct of the vendee was a continuing demand for performance by the vendor, and that the effect of such demand was not waived by the fact the vendor was afforded more than a reasonable time in which to cause the execution and delivery of the deed.
Vendor and purchaser -- notice of rescission -- failure to tender performance.
3. If the vendor was entitled to notice of the intention to rescind, he cannot be relieved from the effect of the rescission, unless he tendered performance within a reasonable time after notice thereof, which he did not do in this case.
George T. Olsen, M. E. Stone and Ernest Lundeen, for appellant.
Ditlew M. Frederiksen and James E. O'Brien, for respondent.
Plaintiff brought this action to recover back the payments, in property and money, which he had made upon an executory contract for the purchase of a section of land in Canada. He alleged as the ground therefor that defendant had failed to convey the land to him as required by the contract, and that he had rescinded the contract for that reason. The trial court found in effect that defendant had failed to deliver a conveyance of the land as required by the contract, but held that plaintiff had waived the right to rescind by his delay and could not terminate the contract without giving notice and allowing defendant a reasonable time thereafter in which to perform. Plaintiff appealed from an order denying a new trial.
It appears from the contract that the purchase price of the land was $17,609; that plaintiff paid thereon the sum of $8,825 in property, at the execution of the contract on October 28, 1912; that the remainder of the purchase price was payable in five annual installments; that time was of the essence of the contract; that plaintiff had the right to pay all, or any part, of the deferred payments at any time, and was entitled to a discount of 3 1/2 per cent if he paid in full within one year, and that he was entitled to a deed of the land in fee simple upon making such payment. On July 3, 1913, plaintiff paid $1,249.20 upon the installment which did not become due until October 28, 1913, and intimated that he would take advantage of the discount and pay in full in October. Later he informed defendant that he could not obtain his money until about the middle of November, and defendant agreed to allow the discount if payment was made at that time. Defendant did not own the land, but held a contract for the title from the Canadian Northern Railway Company, and informed plaintiff that it had arranged to turn over to the railway company the remaining payments to be made by plaintiff. While the contract entitled plaintiff to a deed from defendant, he made no objection when informed that the deed would be from the railway company, and waived his right to insist upon one executed by defendant. When plaintiff had his money ready, he and a representative of defendant computed the amount due defendant, and, on November 13, 1913, this amount together with plaintiff's copy of the contract was sent to the National Trust Company at Winnipeg, Manitoba, through a bank at St. Peter, Minnesota, to be delivered to defendant upon delivery of a deed and abstract showing title in plaintiff. Why the money was sent to the trust company at Winnipeg does not appear very clearly, but apparently it was because defendant had arranged to turn it over to the Canadian Northern Railway Company, and the deed was to be executed by that company. At any rate, both parties acted upon the theory that, by delivering the money to the trust company, plaintiff had done all that was required of him, and no question was raised as to the sufficiency of his tender. The money and contract were received by the trust company at...
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