126 Minn. 359 | Minn. | 1914
Tbe facts in this case are substantially as follows: On September 27, 1909, Henry F. Brown, now deceased, entered into an executory contract for tbe sale of certain real property to Frank J. Mackey for tbe consideration of $40,000, tbe same to be paid at tbe time stated in tbe contract, namely, within 15 days after an abstract was furnished, tbe time to furnish which was fixed at 10 days from the date of tbe contract. Tbe land was situated in tbe suburbs of Minneapolis, and tbe purpose of tbe purchase was to plat tbe same into lots to be sold to third persons. In view of tbe location of tbe land tbe question of street car facilities was considered by tbe parties, in respect to which tbe following provision was incorporated in the contract:
“As a part of tbe consideration of tbe purchase of said land the first party (Brown) agrees that be will, prior to tbe payment of said*361 purchase price, procure the Minneapolis Street Railway Company to enter into an agreement, -whereby when said land shall be platted the then owners thereof and their assigns shall have the right thereafter to ride upon said railway from said land into any part of Minneapolis for a five cent fare.”
The contract further provided that if the tract of land, upon survey, was found to contain less than 98 acres, a proportionate reduction in the purchase price should be made. The abstract of title was. furnished by Brown, and proved satisfactory to Mackey. It was. subsequently found that the tract contained less than 98 acres and by mutual consent the purchase price was reduced to $37,000. On the eleventh of October, following the date of the contract, Mackey paid to Brown the sum of $37,000 and the latter executed and delivered to him a deed of the land. There had been no compliance with the provision of the contract requiring Brown, before the property was paid for, to procure the five cent fare privilege from the street car company, and the evidence fails to show what, if anything, was said concerning it at the time of the payment of the purchase money and the delivery of the deed. The record is silent upon that question. On the date of the execution and delivery of this deed Mackey entered into an executory contract to sell the same land to the plaintiff in this action for the consideration of $55,000, the same to be paid at the time therein stated. By a contract bearing the same date Mackey also assigned to plaintiff, as a part of the same transaction, the executory contract with Brown, and all rights accrued and to accrue thereunder, including any claim for damages for a breach thereof by Brown, with the reservation that “this assignment is made without recourse to me in any event whatsoever.” Plaintiff subsequently completed his contract of purchase, and thereafter took possession and control of the land. Brown died on December 14, 1912, and in January of the following year respondents herein were named by the probate court as executors of his last will and testament. Thereafter plaintiff presented a claim against the estate for .damages for the alleged breach of the contract to procure the five cent fare privilege, claiming therefor the sum of $27,000. The probate court disallowed the claim, and plaintiff appealed to the dis
The substantial question in the case is whether the findings of the court that the deed was accepted by Mackey as a full compliance with the executory contract are sustained by the evidence.
There can be no serious question that conditions and stipulations in such contracts may be waived or abandoned by the express or implied mutual consent of the parties. And if the deed in this case, in view of the other facts and circumstances presented, was accepted as a full compliance with the executory stipulations, there was necessarily either an abandonment or waiver of the car-fare stipulation. As remarked by Mr. Justice Vanderburgh in Sherwood v. Wilkins, 50 Minn. 152, 52 N. W. 394, an action involving an executory contract for the sale of land: “It was competent for the parties to waive or abandon compliance with the conditions therein. The mutual consent to do so need not be by express words, being equally valid if implied. It is sufficiently implied where, while the contract remains executory, both parties discard it; and this the evidence in the case tends to show.” Citing, Bishop on Cont. § 812; Wheeden v. Fiske, 50 N. H. 125; Ford v. Smith, 25 Ga. 679; Parmly v. Buckley, 103 Ill. 119. The same rule was applied, in Slocum v. Bracy, 55 Minn. 249, 56 N. W. 826, 43 Am. St. 499, where it was further held that, if the deed in such case be accepted as full performance of the contract, the contract becomes merged in the deed, upon which alone the rights of the parties thereafter rest. These cases express the general view of the law upon the question. 3 Notes on Minn, Reports, 1053; 39 Cyc. 1349, and authorities there cited. It is also settled law in this as well as in a majority of other states that a deed so executed by the vendor and accepted by the vendee, when the provisions thereof differ or depart from those contained in the executory contract, is presumed to express the final
The record presents no reversible error, and the order appealed from must be and is affirmed.
Order affirmed.