124 P. 476 | Idaho | 1912
This action was commenced for the specific performance of a contract to convey real estate. Judgment was entered for the plaintiff and the defendant appealed.
On the 11th of March, 1907, appellant and respondent entered into a written agreement whereby appellant agreed to sell and the respondent agreed to buy lot 1 in block 1 of South McCammon, in Bannock county, at a stipulated price of $350, which was evidenced by a promissory note executed by the respondent. The agreement contained a provision that the purchase price should be paid on or before the 11th day of March, 1908, and it was provided “that J. M. Coburn, party of the first part, agrees to extend the time one year from March 11, 1908, on all money not paid, at the rate of ten per
“In the event of a failure to comply with the terms hereof, by the said party of the second part, the said party of-the first part shall be released from obligation in law or equity to convey said property, and the said party of the second part shall forfeit all right thereto, and all payments made on said property. And the said party of the first part, on receiving such payment, at the time and in the manner above mentioned, agrees to execute and deliver to said party of the second part, or to ... . assigns, a good and sufficient warranty deed to said premises.”
Following the execution of this agreement, the respondent was let into possession of the premises and thereafter paid all Íaxes and assessments on the property and erected a house ■toarn and other buildings on the land of the value of and continued to occupy and use the property ■PRtill in the possession and occupancy thereof at the Rie of the trial of this case. Payment was not made on the 11th of March, 1909, but was tendered somewhere from the 16th to 22d of March. Appellant refused to accept the same and execute a deed unless the plaintiff would pay an additional sum of about $100 over and above the contract price.
On the trial of this case the appellant contended that time was of the essence of the contract and that the failure of the respondent to mate payment at the time and in the manner specified in the contract worked a forfeiture of all rights under the contract. The respondent claimed that he was excusable for the neglect and failure to make payment on the 11th of March, and produced his evidence in support thereof, which was directly contradicted by appellant and his witnesses. The court after hearing all the evidence in the case made his findings in favor of the respondent upon all the contentions made. On the issue of respondent’s excusable negligence and laches in not making the payment at the specified time the court found that a short time after the making
The evidence of respondent, the plaintiff in the lower court, and his witnesses was sufficient to justify the court in making the foregoing findings and is sufficient to uphold them. Had the court believed the appellant and his witnesses, he would have found that no such agreements and understandings were had, as appellant denied all these facts and testified that he notified the respondent on several occasions as to the date on which the debt would become due, and that he demanded payment on the 11th day of March and that the respondent neglected and refused to make payment. The court had all the parties before him and was in a position to estimate and measure up the respective parties as to their veracity and integrity, and we are not inclined to disturb his findings. The circumstances as disclosed by the record are all in favor of the respondent. The fact that he had been let into possession of the premises and had made valuable improvements thereon in excess of the value of the land itself constitutes a strong equity in favor of respondent, and it also tends to corroborate the evidence of the respondent that he was deceived or misled or mistaken as to the date on which the payment would become due, for the reason that within at least eight days thereafter he procured the money and deposited it with O’Leary to pay the debt upon the execution of a deed. Again, it is not reasonable to suppose that he would have been inclined to forfeit all the improvements that he had made on the premises which exceeded in value the amount of the purchase price on the real estate. During the time that was allowed to elapse between the actual maturity of the indebtedness and the tender of payment, the appellant did not change his relation to the property nor was he in any way prejudiced by reason of any changed relation he thereafter sustained either to the property or to the respondent or any third party.
The judgment should be affirmed, and it is so ordered. Costs awarded in favor of respondent.