| Minn. | Jun 30, 1893
This was an action for specific performance of a contract for the sale and conveyance of real estate. At the time of the sale one-fourth of the purchase price was paid by the vendee, and the balance was to be paid in six months, according to the conditions of the vendee’s promissory note of even date. By the terms of the contract, prompt performance-on his part was required of the vendee; and it was expressly provided that if he should make default in his payment the contract should be void, at the election of the vendor, “time being of the essence of this agreement.” The note was made payable at a certain bank in the city of St. Paul, and was there for collection on the day it matured, — August 17, 1891; but the maker did not have, nor -did any other person have, funds at the bank with which to pay it, and it was not paid. On August 18th — the day after that on which the note matured — the vendors elected to declare, and by written notice to the vendee did declare, the contract void, at the same time returning his note. Having been notified by the bank on August 17th that it held the note for collection, the vendee sent a draft for the full amount due. It does not appear from the findings when the draft was sent, but it was not received until August 20th, and was promptly returned. A few days afterwards the ven-dee made a tender, and demanded a deed, which was refused on the ground that the tender came too late.
It is now thoroughly established, with respect to contracts of this character, that the intention of the parties must govern, and if the intention clearly and unequivocally appears from the contract, by means of some express stipulation, that time shall be essential, then the time of completion, or of performance, or of complying with the terms, will be regarded as essential in equity, as much as in law. The courts cannot disregard and ignore express stipulations made by the contracting parties in respect to the essentiality of time, thus to make new contracts for them, although great hardship may result from a rigid adherence to such stipulations. In the contract now under consideration the vendors were given the right to declare
Counsel for appellant does not really dispute this, but urges that it was incumbent upon the respondents to show that they had prepared, and had ready for delivery at the bank, when the note matured, a deed of the premises in question, and that his client could not be declared in default without such a deed being in readiness for delivery upon payment of the note; payment and delivery being simultaneous and concurrent acts, as he puts it. Under the vendor’s covenants in the contract to convey by warranty deed upon prompt and full performance by the vendee, the former were not bound to prepare a conveyance until the vendee was in a situation rightfully to demand it,—that is, when he paid his note,—and after that they would be allowed a reasonable time for drawing and executing the deed. Wells v. Smith, 2 Edw. Ch. 77, affirmed in 7 Paige. Ch. 22, a leading case. See, also, Davis v. Stevens, 3 Iowa, 158" court="Iowa" date_filed="1856-06-15" href="https://app.midpage.ai/document/davis-v-stevens-7091124?utm_source=webapp" opinion_id="7091124">3 Iowa, 158. The vendee could not have put the vendors in default, under the contract, by tendering or paying the amount of his note at the bank on the due day, and demanding immediate delivery of the deed. Nor, had the note been silent as to the place of payment, would it have been obligatory on the vendors to have prepared, and had in readiness for delivery, a deed of conveyance, on the day the note matured. It was not necessary that the vendors should return that part of the purchase price which had been paid, in order to exercise their right to rescind. McManus v. Blackmarr, 47 Minn. 331, (50 N. W. Rep. 230.)
Judgment affirmed.