Truesdail v. Ward

• Decision Date: 29 November 1871
• Citation: 24 Mich. 117
• Court: Michigan Supreme Court
• Parties: Wesley Truesdail v. Eber B. Ward and others

24 Mich. 117

Wesley Truesdail v. Eber B. Ward and others

Supreme Court of Michigan

November 29, 1871

Heard November 1, 1871; November 2, 1871.

Appeal in chancery from Lapeer circuit.

The bill in this cause was filed by Wesley Truesdail, in the circuit court for the county of Lapeer, in chancery, against Eber B. Ward, Halmer H. Emmons, Benjamin F. Moore, William Moore, and Allender S. Moore, for the specific performance of a contract for the purchase of about twenty-five hundred acres of pine lands. The bill was taken as confessed, as against Emmons; the other defendants answered, proofs were taken, and the cause was heard upon pleadings and proofs. The court below dismissed the bill, and the complainant brings the case to this court by appeal.

Decree affirmed, with costs.

Sidney D. Miller, Samuel T. Douglass, Geo. V. N. Lothrop and C. I Walker, for complainant.

Ashley Pond, for defendant Ward; Maynard & Meddaugh, for defendants Moore.

OPINION

Graves J.

On the 23d day of February, 1864, the complainant being interested in a steam saw-mill in St. Clair, entered into a written agreement with defendant Ward, for the purchase of something over four sections of pine land in the county of Lapeer, for forty-four thousand four hundred dollars. By the terms of this agreement complainant was to pay five thousand dollars down, six thousand dollars on the first day of October, 1865 a like sum on the first day of October in each subsequent year to and including 1870, and three thousand four hundred dollars on the first day of October, 1871, together with interest at seven per cent. from July first, 1864, to be paid annually on the first day of October, on the principal sum unpaid. The first payment of five thousand dollars was duly made on the execution of the contract. On the 10th day of December, 1864, the defendant Ward mortgaged his interest in the land and contract to the defendant Emmons, to secure the payment of sixteen thousand dollars on or before the first day of January, 1870, and annual interest on that sum at seven per cent. By the terms of this mortgage, the mortgagee was authorized to annul the agreement with Truesdail, as "therein specified," and was also authorized to receive to his own use the moneys promised by the contract. About the 12th of December, 1864, Judge Emmons notified complainant of the mortgage, and that all future payments should be made to him. As the first day of October, 1865, approached, the complainant, being without means to pay the principal sum of six thousand dollars then to fall due, obtained from Ward an extension of the time, upon condition that he should pay the accrued interest, and accordingly, upon the 28th of September, he paid to Ward two thousand one hundred and sixty dollars and eighty-five cents, as the share of the latter, and in February following, to Judge Emmons, the sum of nine hundred and ten dollars as his portion. Complainant likewise paid the taxes for the years 1865 and 1866, which amounted to over one thousand two hundred dollars. The complainant failing to make further payments, and having done nothing upon the land, the defendant Ward notified him in writing on the 18th of March, 1867, that he was required to make payment of all sums then past due within thirty days, and that in case of failure, he, Ward, at the expiration of that time should declare the contract forfeited, and the rights of complainant under it at an end. No payments being made in the interval, the first notice was followed by another on the 13th of May following, in which Ward declared the contract forfeited, and all rights of complainant under it wholly cut off.

Judge Emmons appears to have acquiesced in these proceedings, as also in those subsequently taken with the Moores. This, I think, must necessarily be inferred from all the circumstances as they now appear. After several months, and in September following the notices, a negotiation commenced between Ward and the Moores for a sale to them of the lands before contracted to complainant, which finally ripened into a contract in writing, under date of October 2, 1867. By this agreement the defendant Ward bound himself to convey the land to the Moores for the same price complainant had agreed to pay, namely, forty-four thousand four hundred dollars, of which, however, the sum of eleven thousand one hundred dollars was to be, and actually was, paid in hand. About five and a half months after this contract with the Moores, and over ten months subsequent to the final notice of forfeiture, namely, on the 18th of March, 1868, the complainant tendered to Ward and Emmons the whole remaining purchase price, including interest to the time when the principal, by the terms of the contract, was to be paid, and demanded a conveyance, which was refused; and in May following he filed this bill to compel performance of the contract. Judge Emmons allowed the bill to be taken as confessed, but the other defendants answered, and on hearing upon pleadings and proofs, the circuit court dismissed the bill. The case is now before us upon the merits. The answers, as required, were put in under oath, and the complainant and defendants Ward, Allender S. Moore, and Judge Emmons were examined as witnesses.

The cause has been argued before us with great thoroughness and ability, and several points have been mooted and discussed, which are thought to be immaterial to a just decision. The amount in controversy is considerable, and the effect of a decree one way or the other must be attended by important consequences to parties. But the circumstance that the pecuniary interests in contest are large cannot unsettle principles. When jurisdiction attaches, the bare magnitude of the matter at stake will neither stay, nor turn aside, the arm of the court. The theory of the case for complainant is, as I understand it, that on a proper interpretation of the contract, time was not of its essence in the view of a court of equity; that the notices of March and May were inopportune for the purpose of declaring a forfeiture because they were not given in October, and were insufficient to effect their professed object because Emmons was not connected with them, and consequently that those notices had not the effect intrinsically to terminate the rights and interests of complainant; that whatever might have been the effect, by itself, of a refusal on the part of Ward and Emmons, after complainant's default in January, 1867, to consider the contract in force, yet that Ward's treatment of the subject, personally and otherwise, after that time, establishes that the agreement was recognized as subsisting and enuring to complainant's benefit, and that the Moores purchased with notice of complainant's contract, rights, and relations, and therefore made themselves subject to his equities.

Ward and the Moores on the contrary maintain that, as matter of law, time was of the essence of the agreement; that the notices from Ward were sufficient to terminate, and did terminate, complainant's rights and interests under the contract, both at law and in equity; but if not, that the sale to the Moores did so, under the circumstances, and in view of complainant's long continued default; that a correct interpretation of the facts shows that complainant not only concealed from Ward until long after the latter had become fettered by the contract with the Moores, that he, complainant, had any latent views inconsistent with Ward's avowed position that the contract had been put an end to; but so carried himself in his intercourse and transactions with Ward, as to lead him naturally to think that the forfeiture, which had been declared, was acquiesced in, and that nothing was expected by complainant except what Ward should allow as matter of favor; and, lastly, that when the Moores came to conclude their bargain with Ward, they were naturally led to assume from complainant's conduct and from appearances he assisted to produce, that he then had no enforceable rights or interests connected with the property.

We cannot read the contract in question without perceiving that the parties regarded the provisions concerning the time and manner of payment as extremely important, and their subsequent conduct relative to postponements is very persuasive evidence that this part of the agreement was understood to be very material. The arguments for complainant were not apparently directed against this view, but were understood to maintain that the fundamental ground of equitable interference in this class of cases is that of relief against forfeitures, and that consistently with that principle a failure to pay by the day, or within any considerable time afterwards, can never be a bar to relief when the alternative would be a forfeiture, however stringent and expressive the terms of the contract may be in making time essential.

The needs of the case do not require an examination of this argument; nor do they demand an investigation of the correct meaning or limits of the doctrine concerning the essentiality of the time for performance. Neither is it necessary to inquire whether the stipulations in this agreement were such abstractly and in point of law, as to permit or debar an enforcement in equity after default upon or without a determinate declaration of forfeiture. The case may be decided upon a different consideration. The conduct of the parties, touching their rights and duties and the continuance and termination of their contract relations, becomes of vital importance, while the merely strict, legal import of the provisions for forfeiture as something separate and apart from a construction adopted by one and apparently accepted by the other party, is, as I conceive, a matter of no moment in ...