Tucker v. Thraves
| Decision Date | 01 June 1915 |
| Docket Number | Case Number: 3936 |
| Citation | 1915 OK 395,151 P. 598,50 Okla. 691 |
| Parties | TUCKER et al. v. THRAVES. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR--Disposition of Cause on Appeal--Evidence. In a case purely of equitable cognizance, where the parties are not entitled to a jury, this court has on appeal the power to go into and examine the evidence, and, where the judgment of the trial court is clearly against the weight of the evidence, to render or cause to be rendered such judgment as the trial court should have rendered.
2. VENDOR AND PURCHASER--Rescission--Notice--Sufficiency. In an action for specific performance of contract, the defense is made that plaintiffs unreasonably delayed tender of performance until the lands involved had considerably appreciated in value, with a view of speculating on the chances of its proving advantageous to them, and the further defense was made that the defendant had rescinded the contract after reasonable notice. Held that, under the facts and circumstances in this case, the time given in the notice was insufficient for the proper closing of the transaction, and the same amounted to an arbitrary and sudden attempt to terminate the negotiations.
3. TIME--Holidays--Performance on Succeeding Day. Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next business day, with the same effect as if it had been performed upon the day appointed.
4. VENDOR AND PURCHASER--Conditions Precedent--Tender of Performance--Sufficiency. Where a contract for the sale of lands provides for the payment of the purchase price upon the approval of certain abstracts and the execution and delivery of a deed either party, in order to put the other in default, must make a tender of performance, and the depositing of such deed in a bank, not designated by the contract, is not a tender of performance.
5. SAME. Where time is not of the essence of a contract for sale of lands, and such contract contemplates the conveyance of good title, the seller cannot place the purchaser in default by a tender of conveyance, so long as there are outstanding mortgages remaining unsatisfied of record.
Error from District Court, Nowata County; T. L. Brown, Judge.
Action by W. B. Tucker and another against W. V. Thraves. Judgment for defendant, and plaintiffs bring error. Reversed, with instructions.
See, also, 45 Okla. 209, 145 P. 784.
W. J. Campbell, for plaintiffs in error.
J. A. Tillotson, W. A. Chase, W. M. Justis, Jr., and W. A. Sipe, for defendant in error.
¶1 On February 1, 1911, W. V. Thraves, defendant, sold to Wm. B. Tucker and E. H. Hess, plaintiffs, the W. 1/2 of the N.W. 1/4 of the N.W. 1/4 of section 18, township 27 N., range 15 E., containing 20 acres, more or less, known as the Betsy Sam allotment, and also the N.W. 1/4 of the S.W. 1/4 and the W. 1/2 of the S.E. 1/4 of the S.W. 1/4 of section 18, township 27 N., range 15 E., containing 60 acres, known as the Jeanette Boles allotment, for the sum of $ 6,500. The sum of $ 100 was in hand paid to bind the contract until the abstracts on said property were brought down to date and the same approved, at which time the said property was to be paid for in full. The abstracts consisted of approximately 400 pages, and were delivered to plaintiffs by defendant on or about February 14, 1911, who took them to their attorney at Coffeyville, Kan., for examination. The attorney reported that there were two mortgages on these premises, to the First National Bank of Coffeyville, Kan., in the sum of $ 2,100 and $ 1,050, respectively, and certain other defects, which defects could be cured by procuring deeds from the allottees. This was accomplished, and the deeds recorded in Nowata county. Three days after the abstracts were delivered by defendant, he notified plaintiffs that unless the purchase price was paid by the next day he would rescind the contract. The purchase price was not paid on the 18th, and on the 20th day of the same month defendant informed plaintiffs that they had broken their contract and defendant was no longer bound thereby, but would give plaintiffs until February 21st to approve or reject the title to the said lands and either decline to take said lands or to pay over the purchase price. On the 21st defendant informed plaintiffs that he had canceled the agreement on account of a breach thereof, but, if they would pay the purchase price by the morning of February 22d, the same would be accepted. No action was taken on the 22d, but on the 23d plaintiffs tendered to defendant the purchase price in full, which was refused, on the ground that the contract had been previously rescinded. It appears from the record that on the day defendant claims to have rescinded the contract an oil well was drilled in on the adjoining land and greatly enhanced the value of the premises in controversy. The record further shows that, soon after the execution of the contract, Thraves executed a general warranty deed to said premises and deposited the same in escrow in the Nowata National Bank, together with a release of both mortgages, which were so deposited in said bank prior to February 14, 1911. At the trial of this cause the court found in favor of defendant.
¶2 It is contended by defendant that this court is bound by the findings and judgment of the trial court, if there is any evidence reasonably tending to support the judgment, and that this court cannot go into the record further than to ascertain this fact. We concede this rule to be true in all actions at law; but where the action is one of equitable cognizance it is the duty of this court to consider the whole record and to weigh the evidence, and, when the judgment of the trial court is clearly against the weight of the evidence, to render or cause to be rendered such judgment as the trial court should have rendered. It was said in Schock v. Fish, 45 Okla. 12, 144 P. 584:
"* * * The true rule, and which should be recognized by this court, is, in all cases which were cognizable only in a court of chancery, it is the duty of this court to consider the whole record, to weigh the evidence, and, when the judgment of the trial court is clearly against the weight of the evidence, render or cause to be rendered such judgment as the trial court should have rendered."
¶3 In the case of Wimberly v. Winstock et al., 46 Okla. 645, 149 P. 238, it was said:
"In a case, purely of equity cognizance, where the parties are not entitled to a jury, this court has, on appeal, the power to go into and examine the evidence; and when the judgment of the trial court is clearly against the weight of same, render, or cause to be rendered, such judgment as the trial court should have rendered."
¶4 The sole issue in this case is whether plaintiffs unreasonably delayed tender of performance on their part until the land involved had considerably appreciated in value, with the object of speculating on it at the risk of defendant. Time was not of the essence of the contract. Subsequent to the execution of this contract, notice was given to plaintiffs limiting the time within which the purchase price was to be paid, and the question now before us is whether the notice gave to the plaintiffs a reasonable time in which to comply with the contract according to all the facts and circumstances in the case. It is therefore necessary for us to consider such facts and circumstances before we can say, with the trial court, that there was such an unreasonable delay as to indicate an intention to speculate at the risk of defendant. The contract was entered into on February 1, 1911. Abstracts were prepared and furnished to plaintiffs on February 14th. These abstracts contained approximately 400 pages, and by the terms of the contract the purchase price was to be paid in full when the abstracts were "brought down to date and same approved." Three days after this abstract was furnished, defendant insisted on full payment by the next day, threatening to declare a rescission of the contract in case of a failure to comply with such request. Several other verbal notices were given along the same line. On the 21st day of the same month, notice was given that, unless the purchase price was paid in full by the 22d day of said month, the contract would be rescinded. On the 23d day of February, 1911, which was just 22 days after the contract was entered into, and nine days after plaintiffs had procured abstracts of title, plaintiffs tendered the purchase price in full, which was refused, on the ground that the contract had been rescinded on the day before on account of an unreasonable delay in the performance of the conditions thereof.
¶5 It is admitted that this land was valuable for oil purposes, and on the day of the attempted rescission by defendant a large oil well had been drilled in on land adjacent to that in controversy, which materially increased its value. It must be borne in mind that this property consisted of two tracts of land. The title to a part thereof was based upon court proceedings requiring an abstract of some 400 pages. The attorney who examined the abstract found a defect in the title which made it necessary to procure an additional deed in order to cure the defect, and such deed was afterwards procured. The trial court held that the plaintiffs herein, after the execution of the contract, did not attempt to close the deal within a reasonable length of time and were guilty of inexcusable delay in fulfilling their part of the contract, and that such delay indicated an intention on the part of plaintiffs to speculate at the risk of defendant, thereby reserving the right to withdraw from the terms of the contract, should the premises prove of less value than that mentioned in the contract. In this holding we cannot agree. The time given by defendant...
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