20 S.D. 196 | S.D. | 1905
This is an action to enforce the specific peformance of a contract for the conveyance of real property. The findings and judgment being in favor of- the plaintiff the defendant has appealed.
The appellant seeks a reversal of the judgment on the following grounds: (i) For the reason that the court erred in overruling appellant’s objection to the introduction of any evidence under the complaint; (2) for the reason that the court erred in finding that on January x, 1902, the plaintiff tendered to the defendant the sum
It is further contended by the appellant that the court erred in finding that on January i, 1902, the plaintiff tendered to the defendant the sum of $3,000, and demanded a conveyance of said premises, and that the defendant at said time refused to perform the conditions of said contract on his part as the evidence was insufficient to support the findings. While the evidence discloses that the plaintiff did not in fact tender to'the defendant the $3,000, as found by the court, the evidence 'shows that he did in effect make the tender by going to the residence of the defendant on the 1st day of January with the money, and that he was then and there ready and willing to pay to the defendant the said sum, but was unable to make the formal tender, for the reason that the defendant was absent from his home and from the state. The finding, therefore, was in our opinion justified by the evidence. The agreement in this case, though signed by both parties, was in effect an option contract. It was a stipulation appended to the end of a farm lease executed by the defendant to the plaintiff, and reads as follows: ‘‘And it is also agreed that the said Henry Herman shall have the privilege at the expiration of this lease of purchasing the above tract of land for the sum of three thousand dollars ($3,000).” The lease was executed in August, 1899, and was for the term of two years, commencing on the 1st day of January, 1900. The lease, therefore, by its terms, expired on the 31st day of December, 1901.
The evidence upon the subject of tender or offer of payment was in substance as follow: The plaintiff upon his examination,- after testifying as to the genuineness of the signatures of himself and the defendant, testified: “I had a conversation with the defendant in this action, on or near the expiration of this instrument as named therein, concerning the purchase of the land described. It was
It is contended by the appellant that these sections have no application to the case at bar, for the reason that they are designed to meet the case of debtor and creditor, and that the plaintiff in this case was not a debtor within the meaning of that section, and the defendant was not a creditor; but we are inclined to take the view that these sections apply to all cases where an obligation is sought to be enforced. It is quite clear, therefore, that the plaintiff, not being able to find the defendant within the state and within a reasonable distance from his residence or place of business, was not required to do more than he did do as shown by the evidence in this case. Again, by section 1176, it is provided: “A refusal by a creditor to accept performance, made before an offer thereof, is equivalent to an offer and refusal, unless, before performance is actually due, he gives notice to the debtor of his willingness to accept it.” As we have seen, the undisputed testimony shows that the defendant in this case, some six weeks prior to the time for the per-
It is contended by the appellant that the only tender that could properly be made by the plaintiff which would bind the defendant was a tender under the provisions of section 1166 which reads as follows: “An obligation for the payment of money is extinguished by a due offer of payment, if the amount is immediately deposited in the name of the creditor with some bank of deposit within this state, of good repute, and notice thereof is given to the creditor.” But that section seems to apply only to. the extinguishment of an obligation and the term “creditor” is there used as well as in the other sections referred to. After a careful examination of these various provisions of the Qode, we are inclined to take the view that they apply to all cases where a tender at common law was deemed necessary, and that the plaintiff in this case, having complied with the provisions of section 1155, he has done all that the law requires of' him to do, and that he in effect made the tender as found by the court on the 1st day of January, 1902, and within the time specified in the stipulation, as he was not required to make the tender or offer of payment until the expiration of the lease, and that did not expire until 12 o’clock on the night of the 31st of December. Consequently, the plaintiff had the following day in which to make the tender. It is undoubtedly true, as contended by counsel for the appellant and defendant, that in an option contract time is necessarily of the essence of the agreement, and that a tender or offer of payment must in effect be made within the time specified in the contract by the party seeking to enforce it. Richardson v. Hardwick, 106 U. S. 252, 1 Sup. Ct. 213; Weaver v. Burr, 31 W. Va. 736, 8 S. E. 743, 3 L. R. A. 94; Steele v. Bond et al., 32 Minn. 14, 18 N. W. 830; Bostwick v. Hess, 80 Ill. 138; Coleman v. Applegrath, 68 Md. 21, 11 Atl. 284; Gira v. Harris, 14 S. D. 537, 86 N. W. 624. This conclusion necessarily disposes of tlie third contention of the appellant that the court erred in its conclusion of law, and its conclusions necessarily followed from its findings.
The judgment of the circuit court and order denying a new trial are affirmed.