199 P. 907 | Mont. | 1921
prepared the opinion for the court.
Appeals by plaintiff from a judgment entered in favor of defendants, and from the order of the court overruling the plaintiff’s motion for a new trial. The cause was tried by the court, sitting without a jury.
The plaintiff asked for cancellation of a contract for the conveyance of land, and for a decree to the effect that defendants have no right, title, interest or estate in the lands,
By agreement dated March 4, 1912, the plaintiff and Grace E. Hogsed agreed to convey to defendants by warranty deed, free and clear of any encumbrance, and defendants agreed to purchase of plaintiff certain lands in Yellowstone county, Montana, the consideration being $8,280. The defendants were to convey to plaintiff two certain lots in the town of Belgrade, which were to be accepted as part payment, in the sum of $5,880, the remaining purchase price to be evidenced by notes of defendants, one note for $350, payable October 26, 1914, without interest, one note for $1,000, payable on or before March 1, 1915, with interest at the rate of eight per cent per annum until paid, and one note for the sum of $1,050, payable on or before March 1, 1915, with interest at the rate of eight per cent per annum until paid. Plaintiff agreed that when the payments were made he would execute and deliver to defendants the deed to the lands. It is further provided that “time is the essence of this agreement,” and, if defendants failed to comply with the covenants and conditions of the agreement, plaintiff was entitled to terminate the agreement, and defendants forfeited all previous payments made. Defendants were to pay the taxes on the land, and the contract was made to extend to and be binding upon the heirs, administrators, executors and assigns of the parties. The deed to the Belgrade lots and the notes mentioned in the agreement were all executed and delivered to the plaintiff, and defendants entered into possession of the lands. The notes put in evidence do not in all respects correspond with the notes referred to in the contract. All the notes introduced as evidence,
On October 26, 1914, defendants offered to pay the balance of the purchase price, on condition that plaintiff “deliver a good and sufficient conveyance” to the lands. No deed was ever tendered by plaintiff, and on November 3, 1914, plaintiff’s attorneys notified defendants in writing that plaintiff was ready and willing to give them a deed as called for in the contract, at any time they made payment of the balance due, and stated that if prompt payment was not made by the defendants suit would be started to cancel the contract; and on December 28, 1914, plaintiff’s attorneys again called the attention of Mr. Gillett to the fact that the notes had not been paid. On February 1, 1915, the defendants’ attorney called the attention of the plaintiff to the fact that they had on October 26, 1914, offered to make payment on condition that a deed be delivered to them, as described in the contract, and that no deed had ever been delivered or tendered, and that they deemed the time which had elapsed since the said tender wholly unreasonable, and that they then withdrew the tender and rescinded the contract. On June 8, 1915, the plaintiff by his attorneys notified the defendants in writing that, by reason of their default in making the payments, the contract was canceled; that unless they made such payment on or before the 16th of June, 1915, the said contract would be absolutely terminated; and on June 21, 1915, this action was commenced.
Plaintiff testified: “I bought the land from Sears and Dawes. I had a contract with them involving this land in
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
Affirmed.