68 W. Va. 567 | W. Va. | 1911
The object of the bill in this cause is specific performance of a contract and sale of real estate with an abatement from the purchase money, on account of failure of the vendor to insure a building, constituting part of the purchase, which was destroyed by fire after the contract was made. Relief was denied the plaintiffs, their bill dismissed and a decree entered against them for $1,654.50, the balance of the purchase money.-
The property consisted of about fourteen acres oí land on which there was a water power grist mill, a dwelling house and
The construction of the clause of the contract, relating to insurance and the effect of the admitted subsequent knowledge of the plaintiffs constitute the material questions, submitted in argument. That the insurance clause must be construed as imposing duty to insure the mill, there 'being no insurance on it at the time, is untenable, in our opinion. Literally “to keep the property insured” means to continue existing insurance. “The property” literally means all insurable property, but, as the mill was practically uninsurable, it must be taken to mean only such as was ordinarily and reasonably insurable. Plaintiffs knew the property was then unoccupied and must be deemed to have known that property of all kinds and in all conditions is not reasonably, readily or at all insurable. . A contract, not clear and free from ambiguity, must receive a reasonable construction, found as a matter of intent in the nature, and condition of the subject, the situation of the parties and the purposes they had in view, subject to the limitation of consistency with the terms used. Armstrong v. Ross, 61 W. Va. 38; Shrewsbury v. Tufts, 41 W. Va. 212; Scraggs v. Bill, 37 W. Va. 706;
However, the court erroneously decreed payment of the balance of the purchase money unconditionally. In other words, it decreed payment without requiring delivery of a deed by the defendant. Clarke v. Curtis, 11 Leigh 559; Snodgrass v. Wolfe, 11 W. Va. 158.
A cross assignment asserts error in the overruling of the demurrer because the bill does not tender the whole of the purchase money, remaining unpaid. It averred readiness to pay this amount, less the abatement claimed. It also disavowed intention to rescind the contract and prayed a decree for a conveyance, on payment of the balance of the purchase price, less such an amount as, under the circumstances, was reasonable. This necessarily expresses willingness to pay all of it, in case no abatement can be obtained. Principles declared in Ross v. Armstrong, 61 W. Va. 38, sustain the action of the court in overruling the demurrer.
The decree dismisses the bill and requires pajunent of the purchase money, without providing for the execution of a deed. The answer averred willingness to execute the deed but tendered none. The decree puts it in the power of the defendant to obtain the money without eonvejdng the property. 'We perceive no principle upon which such a decree can be sustained, although it is evident no wrong was intended.
For the errors in dismissing the bill and failure to require a deed from the defendant, the decree will have to be reversed; and, as the cause is complete in the record before us, a decree, requiring the plaintiffs to pay to the defendant the sum of
Reversed and Rendered.