Bradford v. Limpus

10 Iowa 35 | Iowa | 1859

Woodward, J.

The plaintiff stands upon the doctrine that a provision that a contract shall become void upon nonpayment, or other non-performances, is for the benefit of the obligee, and the obligor can not avail himself of it. This may be the true doctrine. It is supported by the cases cited by the plaintiff, 1 Smith’s Lead. C. 88; 5 Story Eq. Jur. sec. 717; Clark v. Jones, 1 Denio 517; 5 Cow. 270, and also Mason v. Caldwell, 5 Gil. 196. But the case may be changed when the obligee has entered upon conditions broken. 1 Smith’s Lead. C. 88. It need not be considered, however, whether this is the true rule, for there are elements entering into this case which do not exist in those where the rule is so stated. This is not simply a provision for avoiding the contract. The terms of the condition must be regarded. If the defendant fails to pay the notes according to their tenor, the plaintiff has power to enter and take possession. Then there is a special provision in reference to the first note; if the failure be to pay this first one, the contract shall be void, and Bradford shall take possession. It is not that he shall have authority to, but shall take possession, and refund to Limpus $1,200 out of the $1,700 paid him — five hundred being forfeit. Now it seems to us that this is more than the ordinary provisions. It is an expressed intention that, until the first note fell due, the obligor should have the option to abandon the purchase upon forfeiting $500. No other conclusion can be drawn from the plain and express agreement that Bradford shall repay the $1,200. This is entirely inconsistent with the idea that he alone had the option to terminate the contract or to enforce it. The non-payment of the first note was not merely a default, it was an election. The language of the instrument changes; when before speaking of default, it gives the obligee authority to enter, &c.; but if failure be made on the first note, he shall take posses: sion and refund, and the contract become void. The provision that he shall repay the $1,200, if no other, is control-ing, takes away all authority and removes the case from the rule relied upon by the plaintiff. Therefore the order of the court sustaining the demurrer is erroneous, and the same is reversed and the cause is remanded for further proceedings.

Reversed.