85 P. 598 | Kan. | 1906
The opinion of the court was delivered by
This suit was brought in the district court of Trego county to cancel a contract for the sale-of real estate which the plaintiff had executed to the-defendants, who had made default in payments due-thereon.
By the terms of this decree the grantor retains $1322.03 paid on the purchase-price, and also recovers the possession of the land. The grantees have been in possession two years. Upon these facts the plaintiffs in error claim: (1) That the defendant in error is not entitled to a forfeiture, and (2) if he was entitled thereto, it has been waived.
This court, in the case of National Land Co. v. Perry, 23 Kan. 140, held that where parties to a contract for the sale of real estate make time of the essence of the contract a forfeiture will be upheld as stipulated, unless under the circumstances of the case it would be grossly inequitable. At the same time courts do not favor, but on the contrary they abhor, forfeitures, and will resort to very liberal rules of construction to avoid them. (English v. Williamson, 34 Kan. 212, 216, 8 Pac. 214; Hartley v. Costa, 40 Kan. 552, 559, 20 Pac. 208; Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 39 Pac. 718; Forest City Ins. Co. v. Hardesty, 182 Ill. 39, 55 N. E. 139, 74 Am. St. Rep. 161; Grigg v. Landis, 21
“A court of equity will not declare a forfeiture unless compelled to do so. It violates every principle of justice to take the property of one man and give it to another without compensation upon a simple failure to pay at the, day, where there had not been gross laches.” (Page 680.)
It seems to be a well-established rule in such cases that the party claiming the benefit of a forfeiture must show himself to be strictly within the terms of the instrument which confers that right. He must act promptly in asserting his claim, and his acts relating thereto must be positive, unequivocal, and inconsistent with the continuance of the contract. (Faw et al. v. Whittington, 72 N. C. 321; 29 A. & E. Encycl. of L. 677, 681; Boone v. Drake, 109 N. C. 79, 13 S. E. 724; Hipwell v. Knight, 1 Y. & C. Ex. [Eng.] 401.) In the case last cited Baron Alderson said:
“The result of the cases on this subject seems undoubtedly to be that, slight circumstances are sufficient in a court of equity to prevent a party from taking the benefit of such a stipulation; and that whenever a party has done any act inconsistent with the supposition that he continues to hold his opponent strictly to this part of his agreement, he is to be taken to have waived it altogether.” (Page 418.)
In addition to the facts before stated it appears that all payments had been made according to the contract prior to May 1, 1904. At that time interest to the amount of $133 became due. A short time before that date — on April 28 or 29 — defendant. C. E. Cue informed the plaintiff that he would be unable to pay promptly, asked for further time, and offered additional security for the delay. The plaintiff declined, stating that he needed and wanted the money when due.
This suit was commenced May 14, 1904. On May 24 plaintiff filed an amended petition, in which for the first time he tendered back the unpaid notes given for the land; the defendants tendered the full amount then due to the plaintiff, which was refused, and the amount was deposited with the clerk, where it has since remained, for the plaintiff. During the trial, in October, 1904, the defendants tendered the further sum of $530, to apply upon the $614.54 which would become due November 1, 1904, and offered in open court to let judgment go against them at that time if the remainder of the amount which would then become due were not paid. The offer was refused.
We find that the plaintiff by his conduct at and about May 2, 1904, when the forfeiture is claimed to have occurred, waived his right thereto. When ,Cue informed the plaintiff that he was unable to pay and wanted more time, stating that he thought he could possibly raise the money by Thursday or Friday, and
This makes it unnecessary to consider the question whether the amount paid by the defendant was so great as to make a forfeiture grossly inequitable or not. It is apparent, however, that the defendants are ready, able and willing to carry out their contract, and it would be a loss and hardship to them if deprived of the opportunity.
The judgment of the lower court is reversed, with direction to enter judgment for the defendants for costs.