162 Iowa 300 | Iowa | 1913
On September 15, 1911, the parties hereto entered into a written contract whereby the plaintiff purported to sell and the defendant to buy about 47.96 acres of land for an agreed price of $5,995. Of such sum $500 was paid at the time of the execution of the contract. The balance of the purchase price was to be paid April-1, 1912, and a proper deed was to be executed by the plaintiff to. defendant at the same time. It was further provided that the defendant should have possession March 1, 1912. The contract contained the following provisions:
Now, if the said party of the second part shall pay to the party of the first part the balance of said purchase price as set forth below, on the following dates, to wit:
Date Payable. Principal. Interest. Total.
April 1, 1912 $5,495.00 No.
With interest at tío per cent, per annum, payable annually, as above, and shall pay all taxes and assessments before they become delinquent, which may be levied or become due on said real estate from and after the date hereof, the*302 said party of the first part will, at his own cost and expense, execute and deliver to said party of the second part, or to his assigns, a warranty deed and abstract showing good title and free from all liens and incumbrances, including taxes for 1911 to the above described premises on April 1, 1912. Principal and interest payable at People’s State Bank, Humboldt, Iowa. It is agreed by the parties hereto that, in ease any payment of principal or interest remains unpaid for the space of thirty days after the same become due, the whole amount remaining unpaid on this contract shall (after the lapse of said thirty days) become due and payable without notice, time being the essence of this contract, and in such ease all moneys paid to said first party shall be retained by him as liquidated damages, and this contract may be declared null and void at the option of the said first party.
The land involved was a part of a larger tract recently purchased by plaintiff by written contract from one Dodd, a neighbor of tire defendant. Plaintiff’s contract with Dodd also called for a conveyance by Dodd to plaintiff on April 1, 1912, and possession to plaintiff on March 1, 1912. On April 1st the defendant was ready to perform the contract. The abstract of title, however, which had been presented to plaintiff by Dodd, indicated some slight defects which the plaintiff desired should be cleared by Dodd before the consummation of the transaction. This required the obtaining of an affidavit for the purpose of some identification and of a release of the land from a certain mortgage which covered such land and other lands. Such release had been arranged for prior to April 1st, but it had not actually come to hand. In all other respects plaintiff was ready to perform his contracts both with Dodd and with the defendant.' A few days were requisite for obtaining the papers referred to. They were obtained within four days and placed of record. And thereafter no obstacle remained to the full performance of the contract sued on. .The defense is based upon the following general proposition: (1) That time was of the essence of the contract, and that the plaintiff was bound to perform upon the very date agreed
A person was designated by the defendant to whom the plaintiff should deliver the abstract for final examination after .the objections to the title had been met. The defendant as a witness denied this in a qualified way, but an examination of all the evidence satisfies'us with the finding of the trial, court. From a careful examination of the testimony we are impressed that the defendant was not wholly candid in some- of his denials and qualifications. On April 5th or 6th the abstract was finally approved by the examiner designated by the defendant. On April 6th the plaintiff called the defendant by phone and advised him that everything was ready and that the deed and abstract were on deposit for Mm at the People’s
He called me up over the telephone and told me that the abstract and deed were now ready. That was about the 6th of April. I was at home then. I told him I didn’t think I would do anything more about the deal. He wanted to know what was the trouble. I told him I had got tired of monkeying around so long. I had spent part of April 1st with him. I hadn’t seen him from that day until the time he called me up over the phone. I told him then for the first time that I wouldn’t go ahead with the contract. That was the first time that I had told him that. He said he was ready to settle up then, and I told him that I didn’t believe I would do anything more about it. He wanted to know when I would be down again, and I told him I would be down Monday. He wanted to know what was the trouble. I says, ‘You was too anxious for the money and you couldn’t produce the abstract and deed.’ I told him he wanted me to perform and he couldn’t perform. He said, ‘You know why I wanted the money.’ I told him I didn’t know anything about that, and I couldn’t help that, and that the contract called for an abstract and deed and for me to pay the money. He said he had ought to have got around a little sooner to get them, but he was busy. He asked me when I would be down, and I told him I thought I would be down Monday. I think that was all that was said then. I told him that I wouldn’t do anything more with the contract. I made no offers to him that day on the telephone of any kind. I told him that I didn’t believe that I would do anything more under the contract. I think that is the way I said it.
The foregoing was the first suggestion ever made by the defendant of a possible election to rescind. In pursuance of an appointment, the parties met on April 9th, and the plaintiff made formal tender to the defendant of a proper deed and abstract which the defendant then refused to receive. The defendant also made formal tender to the plaintiff of a surrender and rescission of the contract on condition that the
The sum of the situation is that the defendant continued the contract in force while knowing that the plaintiff was taking steps to clear objections to the title and while knowing that the plaintiff was expecting to perform his contract as soon as such objections could be cleared and within a few days, and that he evinced no intent to rescind until after all objections were cleared and the plaintiff was ready, willing, and able to perform. Having held the plaintiff bound to the contract after default until the plaintiff was ready, willing, and able to perform and until he was tendering performance, the defendant could not meet such tender by a change of front and by a notice of rescission. The attempted rescission came too late.
The trial court properly awarded judgment to the plaintiff, and such judgment is accordingly Affirmed.