Harwood
J., dissenting.
Appeal
from district court, Cascade county; C. H. Benton, Judge.
Action
by Jeremiah Wolf against the Great Falls Water-Power & Town-Site Company and others. There was a judgment for
plaintiff, and defendants appeal. Reversed.
A. J
Shores, for appellants.
E. L
Bishop, for respondent.
PEMBERTON
C.J. (after stating the facts).
Upon
the filing of the record of the case in this court, the
respondent moved this court to dismiss the appeal, upon the
grounds that it appears that the judgment of the
court was not entered in the proper book. It appears that the
clerk of the lower court kept a book labeled "Judgment
by the Court," kept for the sole purpose of entering
judgments by the court, and that the judgment in this case
was not entered in this book, but it was entered in the
"Minute Book" of the court. It also appears from
the record of the case that the court on the 17th day of
October, 1891, made and filed its findings and decision and
judgment; that, on the 27th day of October, defendant filed
its notice of intention to move for a new trial; that
thereafter, on the 4th day of November, defendant excepted to
the findings of the court, and moved the court to correct
certain defects therein; that on the 11th day of November the
court made and filed an amended finding, decision, and
judgment, giving the defendant judgment for $75.30 more than
by the original findings and judgment. And, as the appeal is
from the original judgment, the respondent contends it should
be dismissed. If this appeal were from the judgment alone,
this last might be a serious question. But the appeal is also
taken from the order of the court denying appellant's
motion for a new trial, and, as this appeal brings the whole
case here, we do not think it should be dismissed for the
reasons assigned by respondent. It appears also that the
judgment of the court was rendered and entered, but entered
in the "Minute Book," instead of the book labeled
"Judgment by the Court." We do not think the
judgment was invalid, especially between these parties, on
that account, or that no appeal would lie therefrom.
There
are a great many assignments of error in this record. The
appellant contends and urges that the evidence shows that
time was of the essence of the contract, and that the
evidence shows that the plaintiff failed to comply with its
terms in many material particulars, and has shown no excuse
for not complying, and is therefore not entitled to specific
performance. The court found that time was not of the essence
of the contract. Whether the court erred in this finding or
not; whether time was of the essence of the contract, as
shown by the evidence and circumstances surrounding the
case,--we do not deem it necessary to decide in determining
this case, while we confess that many of the facts and
circumstances go far to support the theory that time was
considered as of the essence of the contract by the parties
at the time of its execution. At least, we think it cannot be
insisted, under all the facts and circumstances, that time
was not material. As we view it, the vital question in the
case is this: Was the plaintiff guilty of such laches, under
all the facts and circumstances, after being notified by the
defendant company that it would not fulfill its part of the
contract, in bringing his suit, as to debar him of equitable
relief? "Specific performance is not an absolute right.
It rests in judicial discretion, exercised according to the
principles of equity, and with reference to the facts of the
case." 4 Gen. Dig. U.S. 1710, and authorities cited.
See, also, 2 Beach, Mod. Eq. Jur. § 566, and authorities
cited. In Knox v. Spratt (Fla.) 6 South. 924, the
court say: "The bill shows no reason for this long
delay. Although time is not of the essence of the contract
yet if the complainant is not active and diligent in the
assertion of his claim, and permits an unreasonable time to
elapse, it will be presumed that he has acquiesced, and has
abandoned any equitable right he might have had to enforce
the contract. In the case under consideration the complainant
waited two years and seven months, and he shows no reason why
he delayed so long to file his bill. In Watson v. Reid, 1
Russ. & M. 236, the plaintiff, who was the vendor, did
not file his bill for specific performance until about one
year afterwards. The bill was dismissed on one ground that
the plaintiff had unreasonably delayed filing it. In the case
of Gentry v. Rogers, 40 Ala. 442, the plaintiff,
though notified two years before the time for performance
that the defendant would not perform the contract, waited
nine months after the time when the contract should have been
performed before filing his bill. 'In such cases, though
time be not of the essence of the contract, a court of equity
will not allow of a delay which would enable a party to take
advantage of the turn of the market, and have the contract
performed only in case it suits his interest."' In
Delavan v. Duncan, 49 N.Y. 485, the court say:
"The contract was made November 6, 1862, for the sale of
a house and lot in the city of New York for the price of
$5,500, to be paid on the 15th of the same month, or as soon
thereafter as the title could be searched, not to exceed
thirty days. The judge finds as facts that early in December,
1862, about twenty days after making the agreement, the title
to the property having been searched, the plaintiff said to
the defendant that there were judgments recorded against him
(describing such judgments), and requested him to have said
liens removed, and stated that he was then ready to fulfill
his agreement; that defendant said he could not or would not
remove the liens. The action was not commenced until August,
1866. The inquiry is whether, upon these facts, the plaintiff
was entitled to judgment for specific performance, and, if
not, whether the evidence authorized the finding of such
additional facts as would entitle him to such judgment. Fry
on Specific Performance (section 730), a work of acknowledged
authority, says: 'The court of chancery was at one time
inclined to neglect all consideration of time in the specific
performance of contracts for sale, not only as an original
ingredient in them, but as affecting them by way of laches.
But it is now clearly established that the delay of either
party in not performing its terms on his part, or in not
prosecuting his
right to the interference of the court by filing a bill, or,
lastly, in not diligently prosecuting his suit, when
instituted, may constitute such laches as will disentitle him
to the aid of the court, and so amount, for the purpose of
specific performance, to an abandonment on his part of the
contract.' Section 731 refers to the cases in which this
doctrine was established. Section 732 says: 'The doctrine
of the court thus established, therefore, is that laches on
the part of the plaintiff, either in executing his part of
the contract, or in applying to the court, will debar him
from relief.' 'A party cannot call upon a court of
equity for specific performance,' said Lord Alvanley,
'unless he has shown himself ready, desirous, prompt, and
eager;' or, to use the language of Lord Cranworth,
'specific performance is relief which this court will not
give, unless in cases where the parties seeking it come as
promptly as the nature of the case will permit.' The
cases cited by the author fully sustain his conclusions. See,
also, Marquis of Hertford v. Boore, 5 Ves. 719, and
cases cited note b, page 720; 1 Story, Eq. Jur. § 771,
following to 781. In Taylor v. Longworth, 14 Pet.
172, Judge Story, in giving the opinion of the court, at page
175, says: 'Relief will be given to a party who seeks it,
if he has not been grossly negligent, and comes within a
reasonable time, although he has not complied with the strict
terms of the contract. But in all such cases the court
expects the party to make out a case free from all doubt, and
to show that the relief which he asks is, under all the
circumstances, equitable; and to account in a reasonable
manner for his delay and apparent omission of his
duty."' In Gentry v. Rogers, 40 Ala. 442,
in a case very similar to the one at bar, the court say:
"But there is another consideration which militates
against the case of complainant. If one of two parties
concerned in a contract respecting lands gives the other
notice that he does not hold himself bound to perform, and
will not perform, the contract between them, and the other
contracting party, to whom the notice is so given, makes no
prompt assertion of his right to enforce the contract, equity
will consider him as acquiescing in the notice, and
abandoning any equitable right he might have had to enforce
the performance of the contract, and will leave the parties
to their remedies and liabilities at law. 2 White & T. Lead.
Cas. Eq., note to Seton v. Slade, pt. 2, p. 516;
Guest v. Homfray, 5 Ves. 818; Heaphy v. Hill, 2
Sim. & S. 29; Watson v. Reid, 1 Russ. & M. 236;
Walker v. Jeffreys, 1 Hare, 341. Not deciding the
question whether the rule thus laid down had application to
the case of complainant before the time fixed for the
complete performance of the contract, yet, with distinct and
emphatic notice that the defendant would not hold himself
bound to perform the contract between them, given two years
before the period fixed for performance, he permitted about
nine months to elapse from the latter period before he filed
his bill to enforce performance; and this delay on his part
is not accounted for, but left wholly unexplained. In
Watson v. Reid, 1 Russ. & M. 236, the plaintiff, the
vendor, having notice from the purchaser...
