Three States Lumber Co. v. Bowen

• Decision Date: 06 June 1910
• Citation: 129 S.W. 799
• Parties: THREE STATES LUMBER CO. v. BOWEN.
• Court: Arkansas Supreme Court

129 S.W. 799

THREE STATES LUMBER CO. v. BOWEN.

Supreme Court of Arkansas.

June 6, 1910.

Appeal from Mississippi Chancery Court; Edward D. Robertson, Chancellor.

Action by H. E. Bowen against Three States Lumber Company. From a decree for plaintiff, defendant appeals. Affirmed.

W. J. Lamb, for appellant. S. S. Semmes and W. J. Driver, for appellee.

McCULLOCH, C. J.

Appellant was the owner of a tract of land in Mississippi county, Ark., containing 560 acres, and entered into the following contract for the sale and conveyance thereof to appellee: "This agreement, made and entered into this 1st day of November, 1906, by and between the Three States Lumber Company, a corporation of the state of Wisconsin, party of the first part, and H. E. Bowen, of the county of Mississippi, and state of Arkansas, party of the second part, witnesseth: That upon the performance of the covenants and agreements of the party of the second part, and the completion of the payments hereinafter set forth, the party of the first part hereby covenants and agrees to sell and convey to the party of the second part the following described real estate, to wit: (Here follows description.) That for and in consideration of the covenants and agreements of the party of the first part, the party of the second part hereby covenants, promises and agrees to pay to the party of the first part, the sum of twenty-eight hundred ($2,800) dollars, cash in hand, the receipt of which is hereby acknowledged, and the further sum of fifty-six hundred ($5,600) dollars according to the tenor and effect of two promissory notes, amount of each note, twenty-eight hundred ($2,800) dollars, of even date herewith, given by the party of the second part to the party of the first part, and payable on or before November 1, 1907, and November 1, 1908, respectively with interest on both of said notes, payable annually at the rate of six per cent. per annum. * * * And the said Three States Lumber Company hereby agrees that it will forever warrant and defend the title to said lands against the claims of all persons whomsoever, to the extent of fifteen ($15) dollars per acre; it being expressly agreed and understood by the parties hereto that this grantor shall not be liable on this agreement for more than said sum of fifteen ($15) dollars per acre for the whole of said tract, or any part thereof, to which the title may fail. * * * That time is of essence to this agreement and that the covenants and agreements herein contained shall extend to and be binding upon the heirs, executors, administrators, and successors and assigns of parties hereto. * * *"

Appellee made the cash payment at the time of the execution of the contract and took possession of the land. He failed to make the next payment within the stipulated time, but offered, on January 18, 1908, to pay the amount due, and on November 1, 1908, he tendered the amount of the last payment which became due according to the contract on that date. His excuse for failing to make the second payment within the time specified was that at that time there was a financial stringency prevailing throughout the country, and the banks refused to pay money on checks; that he tendered appellant a check for the amount due, which was refused, and that as soon as the banks began to pay out money he procured the necessary amount of currency, which was on January 18, 1908, and tendered it to appellant. Appellee seeks in this proceeding to compel specific performance of the contract, and tenders the full amount of the unpaid purchase price. The chancery court granted him that relief and appellant brings the case here for review.

It will be noted from an inspection of the contract that it provides in terms that "time is of essence of this agreement." It does not expressly provide, in the event of appellee's failure to pay within the time named, for a forfeiture of his right to have the contract enforced, or for a forfeiture of the amount already paid on the purchase price of the land. "Time may be made of the essence of the contract `by the express stipulations of the parties, or it may arise by implication from the very nature of the property or the...