Williams v. Havens, 9919

• Decision Date: 01 August 1968
• Docket Number: No. 9919,9919
• Parties: C. L. WILLIAMS and Jennie L. Williams, husband and wife, Plaintiffs-Respondents, v. W. W. HAVENS and Alice H. Havens, husband and wife, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 132

444 P.2d 132

92 Idaho 439

C. L. WILLIAMS and Jennie L. Williams, husband and wife, Plaintiffs-Respondents, v. W. W. HAVENS and Alice H. Havens, husband and wife, Defendants-Appellants.

No. 9919.

Supreme Court of Idaho.

Aug. 1, 1968.

Kerr & Williams, Blackfoot, for appellants.

Furchner, Anderson & Beebe, Blackfoot, for respondents.

SMITH, Chief Justice.

Appellants (defendants), W. W. Havens and wife, the purchasers, hereinafter referred to as Havens, appeal from a judgment and decree of cancellation and forfeiture entered against them, involving a land sale and purchase contract made between themselves and respondents (plaintiffs), C. L. Williams, as husband, and wife, the sellers, hereinafter referred to as Williams.

January 22, 1952, Williams, as sellers, and Havens, as purchasers, entered into a written contract for the sale and purchase of approximately 370 acres of undeveloped land in Bingham County, Idaho. The parties agreed to a purchase price of $27,000.00, to be apportioned to the land at $60.00 per acre, and the balance to two 16-inch wells to be drilled by respondents. Appellants made a down payment of $4,000.00. The balance of the purchase price was agreed to be paid in eight equal annual installments of $2,875.00 in principal sum, the first installment to become due one year from the date of the contract, and a like installment to become due January 22nd of each year thereafter, together with annual interest on the unpaid balances of purchase price at the rate of 6% per annum, from January 1, 1952, until the purchase price was fully paid.

The parties refer to 200 acres of the contracted land as the West Farm, and to 170 acres thereof as the East Farm, and the same are so referred to herein.

The land had no appurtenant water rights at the time of sale. The parties intended that the land would be put under sprinkler irrigation by means of the wells which the seller, Williams, agreed to furnish. To such end Williams drilled two sixteen-inch diameter wells, one of about 250 feet in depth on the East Farm and another of similar depth on the West Farm.

The contract recites that the purchaser, Havens, would have to borrow funds to acquire and install the necessary pumping and sprinkler systems ¹ in order beneficially to apply the water made available by the drilled wells; that both parties would execute a mortgage encumbering the property to secure such borrowed money; that the equipment so installed would be 'kept there for providing an irrigation system for the irrigation' of the lands; that Havens would pay for the irrigation system, and that should Havens default in the mortgage payments, Williams would take over the equipment, make the mortgage payments, and terminate the contract.

The parties executed a $12,000.00 real property mortgage encumbering the East Farm, as a chattel mortgage as additional security encumbering the irrigation equipment. The irrigation system was in good condition at the time of trial (January 7, 1965), needing only minor repairs.

The contract also contains forfeiture provisions, in pertinent part as follows:

'In the event of a failure to comply with the terms hereof or to make the payments when due as herein specified by the second parties (appellants) and after demand in writing that the terms hereof be complied with or payments which are in default made within thirty days from the date of said demand on the second parties, and continued default, the said first parties (respondents) shall be released from all obligations in law or equity to convey said property and every part thereof and eject the said second parties therefrom; and the said parties of the first part shall in such event be released from all obligations either in law or in equity to convey the said property as herein prvided, and any amount or amounts which shall have been paid hereon by the second parties shall and may be retained by the first parties and accepted by them as rental for said property during such occupancy by the second parties and as liquidated damages for the breach of this contract; and the said second parties shall forfeit all right thereto and all payments made on said property.'

August 1, 1958, Williams conveyed the 200 acre West Farm to Havens which conveyance left the 170 acre East Farm still covered by the contract. The East Farm is the sole property involved in this action.

Following this conveyance Havens made a payment on August 4, 1958. The Havens paid nothing thereafter. The entire balance of principal and interest was due January 22, 1960.

Williams wrote Havens on June 13, 1961, enclosing a computation of the balance due under the contract. A dispute ensued over the computation, Havens claiming that Williams had charged compound interest, in the form of interest upon interest. Havens also asserted a claim for a set-off stemming from alleged damage incurred upon their land from a trespass by Williams' sheep.

Thereafter, on June 27, 1962, Williams commenced this action for possession of the real property, improvements, and irrigation equipment, and for cancellation and forfeiture of the contract as to the easterly 170 acres (the East Farm). They alleged that there was due, owing and unpaid under the contract $11,245.00 principal, together with interest at six percent per annum from August 4, 1958, the date of the last payment; alleged defaults in the payment of taxes for 1959, 1960, and the first half of 1961; alleged the giving of notices, and Havens' continued defaults after notice.

Havens filed an answer and counterclaim alleging that they had an equitable interest in the property; that they were entitled to a credit of.$926.50 on the installments due in January, 1963, for feed and forage eaten by Williams' trespassing sheep; also, that they wer entitled to a credit of $2,700.00 for a claimed refund received by Williams from the seller of the sprinkler irrigation equipment.

After trial, in January 1965, the trial court on May 4, 1966, rendered its findings wherein it found that Williams had complied with the terms and conditions of the contract, and that Havens had not; that the sprinkler irrigation system on the East Farm was appurtenant to the land; that Havens were delinquent in payment of certain taxes and assessments, in payment of certain installments and interest under the terms of the real property and chattel mortgages, in payment of interest since August 4, 1958, under the contract, and in payment of $11,511.58 principal sum owing as of August 4, 1958. All such sums which Havens owed (with interest computed to date of judgment) totaled $21,153.93.

On the basis of principal and interest received by Williams and apportionable to the East Farm, together with the value of the East Farm, less mortgage principal of $4,800.00 still owing, the court also found the value which would accrue to Williams, upon a return to them of the East Farm, would be $26,408.56; also, found that the rental value of the East Farm as unimproved land, for the thirteen year period during which Havens occupied the land (to time of trial in January 1965), was $21,663.38, which included $751.38 as the balance owing on purchase price of the West Farm, and $2,712.00 mortgage payments made by Williams, defaulted by Havens.

Finally, the court found that 'the cancellation of the contract and restoration of the premises to the plaintiffs (Williams) as prayed for in the complaint do not result in any penalty to the defendants (Havens) or in any unjust enrichment to the plaintiffs.'

The court then concluded that Williams were entitled to have the sale and purchase agreement cancelled and terminated; that they were entitled to retain all payments made by Havens; and were entitled to restoration of the lands (the East Farm) and the improvements thereon (the sprinkler irrigation equipment), subject to the unpaid balance of principal and interest of the real property and chattel mortgages encumbering the land and equipment, and subject to taxes and assessments. The trial court entered judgment accordingly, and decreed that title to the East Farm be quieted in Williams.

Havens claim the trial court erred in granting equitable relief to Williams, contending that Williams failed to perform the contract, by failing to tender a good and sufficient deed and title insurance policy.

Havens made their last payment August 4, 1958; Williams, after having given notice of default, commenced this action June 27, 1962. It is clear from the record that there was still due and owing to Williams, as late as 1962, a substantial portion of the purchase price. The contract provided in effect that Williams were under no obligation to convey the property until the purchase money had been paid in full, together with all of the taxes. See Wolter v. Dixon, 29 Idaho 26, 39, 157 P. 250 (1916). Moreover, when a contract is still executory, a party who is not in default, and who is ready, able and willing to perform may, by serving notice on the other party requiring him to perform within a reasonable time, make such performance a condition of his own further necessary performance. Condorodis v. Kling, 33 Ohio App. 452, 169 N.E. 836 (1928); 17A C.J.S., Contracts § 480, p. 679; 6 Williston on Contracts, 3rd, sec. 852. A tender is not required where the other party has placed it beyond his power to perform, or has shown or indicated that he will not or cannot perform. Siegel v. Shaw, 337 Mass. 170, 148 N.E.2d 393 (1958); Vander Realty Co., Inc., v. Gabriel, 334 Mass. 267, 134 N.E.2d 901 (1956); Adams v. Cox, 52 N.M. 56, 191 P.2d 352 (1948). It is implicit from the evidence that Williams were at all times ready, willing, and able to perform, conditioned upon Havens fulfilling their payment obligations; hence, Havens cannot successfully contend that Williams failed to perform their contractual agreement by failing to tender a good and sufficient deed and title insurance policy.

Similarly, we find no...