143 N.W. 350 | N.D. | 1913
On the 23d day of February, 1904, Charles Ballinger, one of the defendants, was the owner of a quarter section of land situated in Rolette county, North Dakota, and upon that date he entered into what is known as a crop contract for the sale thereof to the plaintiff Duffy for the sum of $3,000. This contract provided, among other things, that Duffy was to pay the purchase price by delivering one half of all the grain and hay to be grown on said premises in each and every year thereafter during the continuance of the contract, free from expense to the first party. It was further agreed that said Duffy would pay all the taxes levied or assessed on the said premises before the same became delinquent. Upon the full payment of the said $3,000 being
(1) The first question presented is whether or not Duffy was in default at the time of the service upon him of the notice of cancelation. It is his contention that certain threshing done for Ballinger should have been credited upon this contract, and that if such credits had been entered the purchase price would be paid in full. Upon this point the evidence is much too voluminous to be set up here, but upon an exami
(2) The appellant contends that this default had been waived because the notice of cancelation was not served until April 19, at which time he had prepared the land for crop and had seeded 30 acres thereof. We are cited to the cases of Fargusson v. Talcott, 7 N. D. 183, 73 N. W. 207, and Annis v. Burnham, 15 N. D. 577, 108 N. W. 549. An examination of those two cases shows the facts to be a great deal different than the facts in the case at bar. In the Eargusson Case the court finds that the service of the notice of cancelation was the first indication on the part of the vendor that he would insist strictly upon his rights. The defendants had requested an extension of time of one year on the contract, and the plaintiff had put thém off without any definite answer. During this time the defendant had acted upon the assumption that this extension would be granted to him, and had expended timé and money upon the place. This court said that under such circumstances the defendant had a right to infer that the extension had been granted. In the Annis Case this court said: “No fixed