54 W. Va. 335 | W. Va. | 1903
The Wheeling Creek Gas, Coal and Coke Company brought suit in "the.circuit court of Marshall county against Thomas B. Elder, the bill in which states that Elder agreed with Hi. C. Staggers to sell to Staggers the coal in two tracts of land by two written agreements. These agreements contained this language: “This agreement witnesscth, that T. B. Elder and Rosana, his wife, parties of the first part, hereby agree to sell and convey to IT. C. Staggers, party of the second part,' his heirs and assigns, all the coal of the Pittsburg or river vein, in and under that certain tract of land * * * for which the party of the second part, heirs or assigns shall pay six dollars,'per acre, for each and every acre, as follows: One third when deed is signed, sealed and delivered, the remainder in two equal annual installments thereafter, with interest at 5 per cent, on deferred payments. Second party reserves the right to pay the whole amount when deed is delivered.
“A general warranty deed, clear of all encumberances, to be made to the said party of the second part, his heirs and assigns, when the-first payment is made, (party of the first part to furnish complete abstract of title), and others are secured by deed of trust on the said property hereby sold. '
“It is expressly understood and agreed that if the first payment aforesaid is not made on the 30th day of November, A. D., 1899, or as soon thereafter as the title shall be examined and accepted by the party of the second part, or his heirs or assigns, this agreement shall be considered as rescinded, and neither party shall be bound thereby. Witness my band and seal this 17th day of August, A. D., 1899. T. B. Elder, (Seal).”
The bill states that Staggers, by writing, 24 October 1899, assigned his right under said contract to D. H. and S’. H. Pearsall.
The written notice of acceptance is signed by D. H. Pearsall as treasurer of said association, and its acceptance is made “subject to examination and approval of the titles, with complete abstracts of title.” The bill further states that a number of tracts of coal land had been purchased by said association, among them the Elder tracts, and that Elder and the association agreed that Elder would join with other parties who had sold coal lands in the block purchased for the association and employ an attorney to make abstracts of their titles and prepare deeds, and that the certificate of such attorney would be acceptable to the association, and title would be taken upon his certificate and would be paid for as soon as he should prepare proper papers; and that under this
In a brief it is claimed that if the agreements are to be regarded as options, they are of no force, because the acceptance of them was subject to examination and approval of title, with complete abstract, whereas, acceptance of an option must be unconditional. Weaver v. Burr, 31 W. Va. 736; Watson v. Coast, 35 Id. 463. But the condition in the acceptance was nothing more than the condition contained in the option, if an option, and surely an acceptance may insert a condition consistent with the option itself. If this condition had been left out of the acceptance, the condition would have been spoken by the option. The acceptance only repeated unnecessarily what the option contained. But I regard the papers, not as options, but as actual sale, and the presence of a subsequent condition of defeasance does not make them options or any the less contracts of sale. Monongah v. Fleming, 42 W. Va. 538. Viewed as such no acceptance was necessary. True, as the papers say that Elder “agrees to sell’ and make no binding obligations on either party till payment, we might regard them as options. But that is immaterial; for if options, acceptance made them ordinary contracts governed by their terms. Watson v. Coast, 35 W. Va. 463. The papers provide that deed shall be made at'payment — both at same moment. So payment was not the act of acceptance.
Treating the papers as such contracts the defense says that failure to make the first payment on the day fixed caused the contracts to end, worked their rescission, because time is made by them the essence of the contract. The general rule is that time of payment is not of the essence of the contract, as the purchase money is a simple debt, and interest is compensation for delay of payment. Ballard v. Ballard, 25 W. Va. 470. But the parties may lawfully make it so, and that such is the intent in this case is mánifest from the papers. But the contracts demand good title and impose upon Elder duty to exhibit abstract of good title and delivery of deeds simultaneously with the first payment, and gives Staggers the right to examine title in the very forfeiting clause. The words requiring payment on a given day alone do make time the essence; but do the provision that Elder is to show abstracts of title, make a deecl and allow time for examintion
Was payment a condition precedent, so that without it no right in equity to the land vested in Staggers by the contracts, or did the contracts vest an estate subject to be defeated by non-compliance with the subsequent condition of payment? “When a contract depends on a condition precedent; or in other words, where the intention of the parties is that no right shall vest until certain prescribed acts are done or omitted, or unless certain prescribed acts are done or ommitted before a specified time, then equity will not relieve against a breach of such precedent condition, for no court has power to make a new contract for the parties which shall confer rights where no rights originally existed. But if a contract contains a condition subsequent, or, in other words, if the intention of the parties is that the rights under the agreement shall vest at once upon its conclusion — subject to be defeated or ended upon the non-performance of the provision which constitute the subsequent condition — or its non-performance at or before a specified day — then equity, by virtue of its jurisdiction over penalties and forfeitures, has power to relieve
I hold that this provision for a payment is not a condition precedent, but subsequent, and that an estate vested subject to be defeated, under circumstances, by non-payment. Under these principles equity has power to disregard this forfeiture. Especially under the circumstances of this case as stated in the bill, which circumstances are that Elder did not furnish abstract of title, or a deed, or offer to do so, and his title, at the date fixed for payment was bad to a material part of the land. “If the defendant’s delay or default has caused the plaintiff’s failure to perform in time, he cannot object to such failure as a defense, however plain and explicit may be the provision of the contract requiring punctuality. A vendor who cannot make a clear title in time cannot set up the purchaser’s default in prompt payment of price.” Pomeroy, Specif. Perform, section 381. “But if a party, who insists upon exact time, has himself been the cause of delay,
There is another reason for equity to relieve against the letter of the contract. According to the bill Elder, after the day for pajnnent, joined with others who had sold coal in employing lawyers to investigate title, and dispensed with payment until abstract should be made, and agreed that the contracts remain in force. “Though time have been expressly made of the essence of the contract, yet the benefit of such an agreemnt may be waived, either at law or in equity.” 2 Lomax Dig. 72. “Specific performance may be decreed in favor of a party who has failed to perform his part of the agreement, if he can show acquiesence in the delay by the other party, or acceptance of a substitute for literal performance.” Waterman, Specific. Perform, section 478. “A party may waive a condtion, or treat the contract after default as continuing in force, in which case he cannot insist on a forfeiture.” Waterman, Specif. Perform, sections 449, 480.
It is said that waiving strict compliance, yet the eleven months between the day of payment and day of tender is too great a delay. The answer is that the chosen attorneys of Elder were in the work of examining titles to various tracts, Elder’s among them, and he agreed to await their report. It may be that it was a long time to examine title; but the bill represents that Elder aided in the work, employed the attorneys, and did not insist on haste, but consented to such delay, recognizing right to complete the sale when report on title should come.
It is objected that the Gas Company has no right to sue on these contracts because there was no contract bjr Elder with it, and because the corporation was not in being at its date. By the contracts Staggers acquired an estate. He assigned to Pear-
It seem to be that Staggers, the Pearsalls and their associates should be made parties. This was not assigned as ground of demurrer. It may be thought that this is ground of sustaining the decree of dismissal; but I do not think so, as the court should have required them to be made parties under section 58, chapter 125 Code.
Our conclusion is to reverse the decree, overrule the demurrer to the second amended bill, direct the plaintiff to amend by making the persons indicated parties, and remand the cause with direction that a rule be given the defendants to answer, and for further proceedings.
Reversed.