Burroughs v. Jones

| Miss. | Oct 15, 1901

Terral, J.,

delivered the opinion of the c'ourt.

In this case it seems to have been the intention of the vendor of the tract, of land to make the times of the payment of the installments of the purchase money of the essence of the contract; for, though eight per centum per annum interest was specified as a compensation for any delay in the payment of the purchase money, it was also provided that if the purchaser did not literally comply with his contract, he should forfeit all right thereunder. The purchaser made a cash payment of $50, and made the first annual payment some nineteen days after it became due. He failed, however, to pay the second, third and fourth payments at the times specified, but in January, 1900 — some three months after the last payment became due — he tendered to the vendor all amounts due for the land, and demanded a performance of the contract. The several deferred payments' were due on the 25th of October, 1897, 1898 and 1899, and the vendor permitted those days to pass without calling for a forfeiture of the contract, but on the 21st of February, 1899, gave notice to Craig that unless all sums due on the contract were paid within three days, he would declare the contract forfeited; and this notice, though received after three days, it is contended put an end to all rights of Craig under the contract. The contention of Craig is that, as Burroughs did not, at the very time of his default of payment, exercise his election to insist upon a forfeiture, he thereby waived his right in that respect. It is apparent that the character of contract to be here adjudicated does not necessarily make time of its essence, and if it be so in this case, it is because of the stipulation in the contract to that effect. And where time is made of the essence of a contract by agreement of the parties it must result that such an agreement merely imposes a penalty, which is not regarded in equity with a favorable eye, and will not be enforced under circumstances which make it inequitable to do so, but on the contrary, will decree a specific performance where the equities of the case justify it. Now, here Craig had so improved the premises that they were worth several times more than the purchase price. He had paid a cash payment, and also the first of the deferred payments, and within a short time after the last payment became due tendered all the money due under said contract. We think the chancellor correctly held that the equities of the case required a specific performance of the contract.

1. That forfeiture will not be upheld unless promptly invoked at the time specified, is sustained by Fry, Spec. Perf., §§709, 710; Monro v. Taylor, 8 Hare, 62. In Cheney v. Libby, 134 U. S., 78 (10 Sup. Ct., 502; 33 L. Ed., 823), the court say: “Even where time is made material, by express stipulation the failure of one of the parties to perform a condition within the particular time limited will not, in every case, defeat- Ms right to specific performance, if the condition be subsequently performed without unreasonable delay, and no circumstances have intervened that would render it unj ust or inequitable to give such relief.” This principle, we think, supports the conclusion of the court in this case.

2. We think, however, that the court erred in giving any damages to Jones on the injunction bond of Burroughs, because when he sued out his injunction his right thereto was undeniable. At that time there was no right whatever in Jones to sell the land in controversy, because his right, whatever it was, was acquired from Craig, who was then in default in the performance of his contract with Burroughs, and the sale of the land would have cast a cloud upon the title of Burroughs, which he had a right to prevent. Benedict v. Benedict, 15 Hun., 307 (2 High, Inj., §1650).

The decree for $60 in favor of L. H. Jones and A. C. Leigh upon the injunction bond of Burroughs is annulled, and the decree in other respects is

Affirmed.