74 F. 52 | 8th Cir. | 1896
titter slating the case as above, delivered ¡lie opinion of the court.
The transaction between Cheney and Wisherd was the very simple one of (lie sale by the former to the latter, mostly on credit, of a tract of wild land. As simple in itself as the transaction was, the written instrument expressing it is an extremely voluminous document, imposing on the purchaser numerous and unusual, stringent, and oppressive conditions, all of which are required to be “strictly and literally” performed by the purchaser, on pain of forfeiting tin' land, and all improvements, fixtures thereon, and all the purchase money paid, and all that may be due when Hie forfeiture is declared, and also the crops that may them he growing on the land. Tirin' is (.n ice declared to be “the essence of this contract,” in respect of every one of its numerous provisions, and it is further declared that “no court shall relieve tin' said second party from a failure to comply sirietiy and literally with this contract,” and that “an oversight or omission of the first party 1o lake notice of any default of the second party shall not be deemed a waiver of the right to do so at any time thereafter.” In the number, severity, and stringency of ils provisions as applied to the purchaser, the contract is without a precedent in our judicial expeiience out side of the cases in which similar comracts made by Cheney with other persons have given rise to lawsuits, and have been made the subject, to a greater or less extent, of judicial considera I ion. We cile some of these cases: Wagner v. Cheney, 16 Neb. 202, 20 N. W. 222; Robinson v. Cheney, 17 Neb. 673, 24 N. W. 378; Roberts v. Cheney, 17 Neb. 681, 24 N. W. 382; Ballard v. Cheney, 19 Neb. 58, 26 N. W. 587; Svaboda v. Cheney, 28 Fed. 500; Cheney v. Bacon, 1 C. C. A. 244, 49 Fed. 305; Cheney v. Libby, 134 U. S. 68, 10 Cup. Cf. 498. However harsh and exuding
We will proceed to consider the several grounds upon which Cheney rests his defense to the bill for specific performance. The first ground relied on in the answer is that the contract is “forfeited, null, and void by reason of the nonpayment of the notes given for the purchase.money as they severally matured.” These notes, by the terms of the contract and by their own terms, were payable at the office of Russell & Holmes, Tecumseh, Neb. Wisherd paid, as part of the purchase price for the land, $412.55, at the date of the execution of the contract; and he also paid at maturity the first two interest notes, due, respectively, May 2, 1882, and May 2, 1883, each for the sum of $905.63. Before May 2, 1884, the date of the maturity of the first principal and the third interest note, Wisherd had placed improvements on the land valued at $20,000. When the last-mentioned notes matured, Wisherd tendered payment of the same at the office of Russell & Holmes, at Tecumseh, Neb., where they were payable; but Russell & Holmes, not having the notes, declined to receive the money. Cheney denied that a legal tender had been made of the money due on these notes, declared the contract forfeited, and instituted an action of ejectment to recover the land. This ejectment suit was tried and decided against Cheney in the circuit court of the United States for the district of Nebraska on the 5th day of February, 1887. The case was then taken on writ of error by Cheney to the supreme court, of the United States, where it was pending until the 5th day of January, 1891, when it was dismissed on Cheney’s motion. By this action the judgment in this ejectment suit became final, and is conclusive against the claim of Cheney that Wisherd had forfeited his rights under the contract by failing to tender payment of the notes which matured May 2, 1884. From the time Cheney brought the action of ejectment, in 1884, to enforce the alleged forfeiture and recover the land, down to the 17th of May, 1890, he asserted that due tender of payment of the notes which matured May 2, 1884, had not been made, and that the contract was null and void. He refused to accept payment of the other purchase-money notes as they matured, or to otherwise recognize the contract as in force. Cheney’s action rendered it manifest that it was not payment of the notes he desired, but a forfeiture of the contract. Wisherd, perceiving that it was Cheney’s purpose to enforce “strictly and literally” the sweeping forfeitures provided for in the contract if the slightest ground was afforded him for so doing, was put upon his guard, and was at great pains and considerable expense to comply strictly and literally with the terms of the contract. Notwithstanding Cheney’s persistent declaration that the contract was forfeited and null and void, Wisherd continued to tender payment of the other purchase-money notes as they matured, at the place where they were made payable. On the 3d of March, 1890, the supreme court of the United States decided the case of Cheney (the same Cheney who is appellant in this case) v. Libby, 134
“Teeumseli National Bank, Successor to Bank of Bussell & Holmes.
“Teeumseli, Neb., May 17, 1890.
“0. A. Holmes, Esq., Prest. Teeumseli, Neb. — Dear Sir: Herewith I hand you for colín. & my cr. 14 past-due notes of S. A. Wisherd, all dated May 2/81, viz. [here follows a particular description of each note]; all drawing ten per cent, interest after d,ue. If Mr. Wisherd will pay same, you will please receive payment therefor for me. Mr. Wisherd to pay the full amount of principal and ten per cent, interest on each of the 14 notes, according to their terms. You will not receive any part payment on the notes, or on any of them. I require full payment of all the notes.
“Yours, truly, P. D. Cheney, of Jerseyville, ill.”
On the same day he wrote the following letter to Wisherd:
“Teeumseli National Bank, Successor to Bank of Bussell & Holmes.
“Teeumseli, Neb., May 17, 1890.
“John A. Wisherd, Esq., Adams, Neb. — Dear Sir: You are hereby notified that I have this day left at this bank your 14 past-due notes, which you can get by paying the amount due thereon within a reasonable time.
“Yours, truly, • P. D. Cheney.”
Within a reasonable time after the receipt of this letter, Wisherd caused to be tendered the principal sum on the 14 past-due notes. Interest thereon after maturity was not included, because payment of the notes had been tendered at the maturity of each. Cheney was advised of this tender by the following letter from his agent:
“Tecumseh National Bank, Successor to Bank of Bussell & Holmes.
“Teeumseli, Neb., May 29, 1890.
“P. D. Cheney, Esq., Jerseyville, Ill. — Dear Sir: At 4 o’clock this afternoon, the cashier of The First National Bank of Lincoln, Neb., called at this bank, and offered to pay the 14 notes of J. A. Wisherd, which you left here for collection May 17, 1890; that is, lie made a tender of $17,512.00, find demanded the notes, claiming that was the amount Mr. Wisherd instructed him to tender, and to pay the same upon surrender of the notes. As the amount was not sufficient to cover the interest and principal, we declined to surrender flic notes or accept the money in payment of them, and hold the notes subject to your further instructions.
“Yours, truly, ' C. A. Holmes, Pt.”
The next and last notes fell due on the 2d of May, 1891; and on that day the complainant caused to he tendered, at the place where the notes were payable, the amount of the notes which matured on that day, and also the principal of the notes which had previously matured, and payment of which had been tendered as they matured; the whole sum tendered amounting to f 11),512. The response of Cheney’s agent to this tender was as follows:
*60 “Tecumseh National Bank, Successor to Bank of Russell & Holmes.
“Tecumseli, Nek., May 2d, 1891.
“O. Oallihan, Esq., Cashier — Dear Sir: We decline to accept the tender this day made ky you of $19,512.00, for J. A. Wisherd, to pay certain notes given to P. D. Oheney under contract for sale of lands, for the reason that we are not authorized by P. D. Oheney to accept the money, nor have we the notes in our possession, nor the deed to the premises for which notes are claimed to have keen given;
“Respectfully, ' Russell & Holmes,
“By O. A. Holmes.”
On the same day, the hank wrote Oheney as follows:
“Tecumseh National Bank, Successor to Bank of Russell & Holmes.
“Tecumseh, Nek., May 2d, 1891.
“P. D. Cheney, IOsq., Jerseyville, Ill. — Dear Sir: The cashier of the First Nat’l Bank of Lincoln, Nek., has this day made* a tender of ($19,512.00; nineteen thousand five hundred and twelve dollars for J. A. Wisherd, to pay certain notes described in a contract dated May 2d, 1881, between you and said Wisherd; demanded the notes and a deed’to the lands described in the contract. The tender and demand was made to me as one of the firm of Russell & Holmes, and also as an officer of this bank.
“Yours, truly, G. A. Holmes, Pt.”
Cheney refused to accept this tender, because it did not include interest on the overdue notes, payment of which had been tendered at their maturity, and on the 6th of May, 1891, again declared the contract forfeited, null, and void, and again sent the notes to Wisherd, and on the 29th of the same month instituted four suits in ejectment to recover the land.
It would serve no useful purpose to set out at length the evidence showing that payment of all the notes was tendered at their maturity at the place where they were made payable. It is enough to say that we find this to be the fact from a careful reading of the evidence. If the fact was doubtful, we should, according to a well-settled rule, resolve the doubt in favor of the findings of the lower court.
In Fitchett v. Blows (present term) 74 Fed. 47, Judge Sanborn, speaking for the court,.said:
“When the court below has considered conflicting evidence, and made its finding and decree thereon, they must be taken to be presumptively correct; and unless an obvious error has intervened in the ax>plication of the law. or some serious or important mistake has been made in the consideration of the evidence, the decree should be permitted to stand.” •
Warren v. Burt, 12 U. S. App. 591, 7 C. C. A. 105, and 58 Fed. 101; Paxon v. Brown, 27 U. S. App. 49, 10 C. C. A. 135, and 61 Fed. 874; Stuart v. Hayden, 18 C. C. A. 618, 72 Fed. 402; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355; Evans v. Bank, 141 U. S. 107, 11 Sup. Ct. 885; Furrer v. Ferris, 145 U. S. 132, 12 Sup. Ct. 821.
If this last claim of forfeiture relied on by Oheney is well founded, he is entitled to the land, with all improvements, fixtures, and growing crops, and to the purchase money and taxes already paid, and, in addition thereto, he is entitled to collect the whole of the unpaid purchase money; the contract providing that, in case of forfeiture, the purchaser shall be bound and liable to pay “all installments of principal or interest that may then be due,” and they were all due at the date of this alleged forfeiture. It will 'be perceived, there
In Cheney v. Libby, 134 U. S. 68, 73, 10 Sup. Ct. 498, the supreme courr e>f die' United State's saiel:
“But it is emite apparent from tlu* e'vieicnce; that Cheney, in 1SSÓ, indulged 1h<> that he> could hr ins: ahemí a forfeiture' of the: contract lor noneom-plinnce on the1 part of Tabby with its provisions, anel that he wemlei. in that or some; oilier way. get hack the' land.”
In this case it is apparent, that the stringent clause's of forfeiture in ihis contract we're put the're' by Cheney, with the deliberate ami iixe'd purpose; of availing liimsedf of the;m as sooii as it weutlel profit him te» do so, and the're' was the slightest de'fault upon which to pre'dicate a claim of forfeiture. Accordingly, as soon as Wish-erd had placed |20,000 worth of improveme'iits e>n the land, lie* declared the' contract forfeited, and brought suit for the; huid, it is now conclusively settled that this claim of forfeiture was false* anel unfeiunded, but it took six years to elenuonsirate this fact. During all that time; the burden was impe>se*el em Wisherd anel the complainant of raising money to pay, or to tender payment, of the notes given feu* the* lane! in the face of Cheney's continue'd declaratiem it»* the ])ublic that ilie* contract. was forfeited, anel the land his. Cheney’s cemelue-t and attitude mulliplie-'d the' already heavy burdens of an unconscionable contract. His declaraÍion (hat the; contraed was for-feite'd. his denial of Wislierd's right to the lamí! and his bringing the* suit to recover it, necessarily impaired Wislierd’s e:re>dii, anel made; it more difficult and burdensome fen* him to raise the money te» pay, en* tender payment, of (he note's as they matured. It is a maxim that a man must be held to have; contemplated the uece;ssary result of liis action. Cheney must have known how embarrassing anel burdensome his action was to Wishe'rd. lie* evidently lioped it would uite'rl.v destroy his credit, and put it emt of hie; power to raise' money to pay oi* tender payment, of tfie; purchase-money notes as they matured; for while he had, in 1884, declared the contract forfeited, ¡niel brought suit for the* land, and was refusing to accept, payment: of the notes, he, nevertheless, was keeping a close watch to see whetli-<t Wisherd tendered payment of the notes at the appointed lime; anel place, intemding, if there was the slightest failure; to comply ‘"liter
In Svaboda v. Cheney, 28 Fed. 503, Mr. Justice Brewer, then circuit judge, said:
“Where there has been, as in this case, part performance, and a forfeiture of all that has been paid and done is insisted upon, a court of equity instinctively turns to the party insisting upon the forfeiture, and inquires whether his conduct fails in the slightest degree. And in this it is not limited to the mere letter of the contract. There are often unwritten obligations which, if disregarded, justify a refusal of the claim of forfeiture. And the more inequitable the demand, the grosser the wrong in insisting upon a forfeiture, the more closely will a court scrutinize the conduct, and the smaller the departure from written or unwritten obligations which will be deemed sufficient to justify a refusal of the forfeiture.”
Cheney was entitled to the benefit of his contract, however harsh and unconscionable its provisions; but he had no right to base an unfounded or groundless claim of forfeiture upon it, in the hope of thereby bringing about a forfeiture, or the necessary tendency of which was to make performance more difficult or the contract less useful or valuable to the purchaser. The language of Cockburn, C. J., in Frost v. Knight, L. R. 7 Exch. 111, 114, is appropriate here. The learned chief justice said:
“The promisee has an inchoate right to the performance of the bargain,, which becomes complete when the time for performance has arrived. In the meantime, he has a right to have the contract kept open as a subsisting and effective contract. Its unimpaired and unimpeached efficacy may be essential to his interests. His rights acquired under it may be dealt with by him in various ways, for his benefit and advantage. Of all such advantages, the repudiation of the contract by the other party, and the announcement that it never will be fulfilled, must, of course, deprive him.”
Upon the soundest principles of equity and fair dealing, Cbeney is estopped, on the facts of this case, from claiming interest on the notes after tender of payment.» To hold that he was entitled to interest on the money tendered would, as we have seen, be tantamount to giving him both the land and the whole of the purchase money. This would be giving one a princely reward for Ms own misconduct. Equity abhors forfeitures, and will not concern itself to make good the loss of interest to one who refused the principal in the hope that he could enforce, upon purely technical grounds, a forfeiture so harsh and sweeping in its character as to shock the moral sense. When he refused payment of the principal of the notes, and, in the hope of winning a great stake, asserted a conscienceless forfeiture, which he could not maintain, even in a court of law, he put the interest on the money tendered to the hazard. He chanced it, and lost.
The case of Hart v. Brand, 1 A. K. Marsh. 159,161, fully supports our conclusion. That was a suit to compel the specific performance of a contract to convey land; and the seller’s conduct and defense were very much the same as that of the appellant in this case, as will appear from reading the full report of the case. On the subject of interest the court said:
*63 “With respect to interest: No proposition can be more clear, that if the purchaser were really and bona lide prepared to make payment, and intended to do so, free from all shuffling, equivocation, and technical quibble, and the vendor has ever since evinced a determination not to perform the contract, if possible, having never given notice to the vendee when to attend on the premises and receive possession, that he is not entitled to interest. In other words, that one holding himself in readiness to pay, and the other refusing to do what the contract enjoined upon him, ought to subject the latter to the loss of interest, and not the former. The wrong was with him, and he cannot charge the effect to the other." And, as to cost, it Is equally clear that the decree is correct. Why the incunnent of cost? Because the benefit of the contract could not be otherwise obtained. This is demonstrable, not only from the other evidence in the cause, but from the answer also. To have tendered the money or demanded, possession under the ciecumstauces would have been an Idle show of form and ceremony. If the defendant intended to comply, by receiving the money and delivering the land, why did ho not rest his defense as to the cost upon this ground, without resorting to points evidently for a different purpose? The real object was clearly to get clear of the bargain; and the next, to secure interest and cost. It is impossible not to perceive, from the whole evidence, that this was the object; and, if possible, to make the experiment at the expense of the purchaser, upon misapplied rules of rigid technical pleading.”
Independently of the misconduct of Cheney, upon the well-settled' rule, he is not entitled to interest upon the money tendered.
A case precisely in point is Ward v. Smith, 7 Wall. 447, where the court said:
“It is undoubtedly trae that the designation of the place of payment in the bonds imported a stipulation that their holder should have them at the bank when due, to receive payment, and that the obligors would produce there the funds to pay them. It was inserted for the mutual, convenience of the parties. And it is the general usage in such cases for the holder of the instrument to lodge it with the bank for collection, and the party bound for its - payment can call there and take it up. If the instrument be not there lodged, and the obligor is there at its maturity, with the necessary funds to pay it, he so far satisfies the contract that he cannot be made responsible for any future damages, either as costs of suit or interest, for delay.”
In Clieney v. Libby, supra, the court held:
“The defendant [Cheney] is not entitled to interest after the respective tenders were made, because it does not appear that the plaintiff has, since the tenders, realized any interest upon the moneys left by him for Cheney at the Bank of Itussell & Holmes.”
Neither Wisherd nor the complainant realized any interest on the money tendered.
In Davis v. Parker, 14 Allen, 94, 104, the supreme judicial court oí Massachusetts say:
“After a tender and refusal, the vendor is not entitled to Interest, unless he can show that the purchaser has made use of the money, or gained some advantage from it. 2 Sugd. Vend. 793. No such evidence’ has been offered in this case.”
In Peugh v. Davis, 113 U. S. 542, 5 Sup. Ct. 622, the supreme court said:
“Nothing hindered during all this time that he should pay his money; and if, as he alleges, Davis denied his right to do so, then he should have made a regular and lawful tender of the amount due. If he had done so, the interest would have ceased to run against him, and the amount that he Is now required to pay would have been diminished by more than one-half.”
“It has also been objected that this tender is ot no avail, from the fact that the money paid into court was not the identical money previously offered or tendered. And it has been insisted that, to keep a tender good, the party must keep the identical money offered ready to be paid over, on demand, or in a proper time, to pay the same in court. This principle, whatever may be the rule in relation to the tender of specific articles, can have no application to the tender of money, or that which the parties have treated as equivalent to the current coin of the country. It is to be borne in mind that a tender of money does not extinguish the debt. It simply bar's the claim to damages and interest and the costs of an action, if the matter is prosecuted. By the tender, if refused, the money does not become the property of the person to whom the tender is made. , Hence the person tendering is at liberty to use it as his own. All he is under obligation to do is to be ready at all times to pay the debt in current money, when requested.”
The next contention of the appellant is that, conceding that "Wish-erd could enforce specific performance of the contract, the complainant, as his assignee or vendee, cannot. This contention is rested on the clause of the contract “that no assignment of the premises or of this contract shall be valid' unless with the written consent of the first party and by the indorsement of the assignment hereon.” This restraint upon the power of the purchaser to assign the contract unquestionably expired when the last purchase-money note fell due, and complete performance of the contract was tendered by the complainant. The complainant’s right to a deed then became absolute. From that time the seller was a mere naked trustee of the legal title, and the purchaser or his vendee the equitable owner of the land. It was no longer any concern of the seller what the beneficial owner of the land did with it, for he no longer had any interest in it. The purchaser had the right to convey his equitable title, or assign his contract to whom he pleased, without asking Cheney’s consent; and his vendee would succeed to all his rights. For the purpose of this case, it is immaterial that the sale or assignment was made before the complete performance of the contract by the purchaser or his vendee, for it was ratified and confirmed at all times thereafter, and at and after complete performance had been tendered by the complainant, when, if not before, it unquestionably became operative.
This provision of the contract was obviously intended to prevent the assignment of the same, while it was .executory to persons who might not be able or well disposed to faithfully execute it. • It was a provision which was inserted in the agreement to enable Cheney, the vendor, to control the selection of an assignee thereof so long as the agreement remained in part unperformed, or so long as he was interested in the choice of an assignee who had the requisite means and ability to do what remained to.be done. Inasmuch, then, as the provision in question was only intended to secure the faithful performance of the agreement by the purchaser or his assignee, it would be both unreasonable and inequitable to hold that Cheney, the vendor, is privileged to take advantage of the provision, to avoid
The views which we have thus expressed on this branch of the case are the same, in substance, that we find stated in a little different form in the case of Wagner v. Cheney, 16 Neb. 202, 20 N. W. 222. It appears in that case that a suit was brought against the present appellant, Cheney, for specific performance, on a contract couched in the same language and containing (lie same provision against an assignment without: his consent as that which figures in the present controversy. Ue attempted in that case, as in this, to avoid the execution of a deed after the terms of the purchase had been fully performed, on the ground that the contract had been assigned by the original purchaser without his consent. But the supreme court of Nebraska said, in substance, that as the contract did not provide in terms that a breach of the provision should work a forfeiture of the purchaser's interest in the land, or impose a penalty for its breach, no advantage could be taken of the breach, by the vendor, in a suit to compel the execution of a deed, after the terms of the purchase had been fully complied with by tbe purchaser or his as-signee. It is also worthy of notice that the appellant, Cheney, is himself a lawyer, and that in the case of Cheney v. Bacon, 49 Fed. 305, which was formerly pending in this court, and in which Cheney acted as his own counsel, he invoked the decision in Wagner v. Cheney, supra, as containing a correct exposition of the law touching the scope and effect of that provision of the contract which is
It is objected that there is no sufficient evidence of the sale of the land and an assignment of the contract by Wisherd to the complainant, and that Wisherd should have been made a party defendant to the suit. The bill alleges that Wisherd sold the complainant his interest in the land, and made him a quitclaim deed therefor, and assigned to him the contract Tested by the settled rules of equity pleading, the answer does not deny these allegations. Story, Eq. Pl. 852, 854; Woods v. Morrell, 1 Johns. Ch. 107; Reed v. Insurance Co., 36 N. J. Eq. 146, 153. But the sale is abundantly proved independently of the quitclaim deed. It is proved by the depositions of Wisherd and the complainant which are a part of the record in the case. The written declaration, under oath, of Wisherd and the complainant, that the sale was made, and that they desire that effect be given to it, is, in equity, as effectual to transfer Wisherd’s equitable right in the property to the complainant as if the sale had been evidenced by the most formal written instrument, and entitles the complainant to the same equitable remedies against the appellant to perfect his title that Wisherd could have asserted if no sale had been made. Whether this sale was evidenced by a deed or an assignment of the contract, or rested on a parol agreement, is no concern of j;he appellant, so long as the parties to it are agreed that it was made, and have asserted the fact upon the record, in a mode, that will estop them from asserting, at any time, the contrary against the appellant.
To the objection that Wisherd should have been made a party defendant, there are several answers. As we have seen, the fact of the assignment is not denied, but only its legal effect. It is absolute, and leaves no interest in the assignor. The objection, if good, was apparent on the face of the bill, and was not taken by plea or demurrer. Such an objection raised at the hearing is never regarded if a decree can be rendered without prejudice to the rights of the party objecting, or the absent party; and as we have seen in this' case, on the state of the record, the rights of the appellant are as fully protected as if Wisherd was a party defendant. The modern codes of practice adopt the equity rules in relation to parties to suits. Under those codes, one suing as assignee of a chose in action, not assignable by statute, is required to make the assignor a party as plaintiff or defendant; but, notwithstanding this requirement, it is uniformly held that the assignor may- be dispensed with as a party, where, by his deposition in the case or otherwise, he admits the fact of his assignment, and disclaims any interest in the controversy; and, where the assignment is absolute and unconditional, the objection that the assignor is not made a party is waived when not insisted upon by demurrer or answer. Nash, Pl. pp. 30, 43; Swan,
It is next objected that the money tendered was not brought into court upon the filing of the bill. But it was tendered in the bill, and an offer made to bring it into court whenever the court should so direct, and this was sufficient. Cheney v. Libby, supra; Pom. Cont. § 361.
After Cheney began his actions of ejectment for the land, in 1894, he paid the taxes for one year, and he has a decree for tlie amount, with interest, which is all that need be said on that subject.
Finding no error in the record, the decree of the circuit court is, in all things, affirmed.
