41 Iowa 402 | Iowa | 1875
This cause was tried upon the agreed statements of facts, as follows:
1st. In June, 1871, negotiations were had between plaintiff and defendant by correspondence, in writing, about the sale by plaintiff to defendant, of the land in controversy. The defendant claimed that the correspondence amounted to a contract, and plaintiff denied this, and refused to. sell or make
. The plaintiff, through a mistake .as to the time of holding said court, made default, and defendant obtained a decree for specific performance within thirty days, and in default thereof that defendant recover four thousand dollars, with costs, as the value of the land. Plaintiff ascertained that such default had been entered after the thirty days had expired. In settlement of that decree the present contract was issued on the 6th day of May, 1872, but dated as of the date defendant claimed his original contract was máde, namely, June -30th, 1871.
. 2d. The contract is as follows: “This agreement made this- 30th day of June, in the year 1871, between th'e Iowa Railroad Land Company, of the first part, and W. D. Mickel, of Missouri Valley, County of Harrison, State of Iowa, of the second part, witnesseth, that in consideration of the stipulations herein contained, and the payments to be made as liereinafter specified, the first party agrees to sell unto the second party the north-west quarter of north-east quarter of section No. fifteen (15), in township No. seventy-eight (78), north of range forty-four (44), west of the fifth principal meridian, being in Harrison County, Iowa, containing, according to the United States survey, forty acres, be the same more or less, for a sum of six hundred dollars, on which the said second party hath paid the sum of one hundred and seventy-seven dollars, being one hundred and fifty dollars principal, and one year’s interest in advance, at six per cent per annum.
And the said second party, in consideration of the premises, ■hereby agrees to pay. to the said first party, at the Land Office of the Iowa Railroad Land Company, at Cedar Rapids, Iowa, ■the following sums of principal and interest at the several .times named below:
And it being mutually understood that the above premises are sold to the said second party for improvement and cultivation, the second party hereby further agrees and obligates himself, his heirs and assigns, that all improvements placed upon said premises shall remain thereon, and shall not be removed or destroyed until final payment for said land; and further that he will punctually pay said sum of money above specified, as each of the sums becomes due; and that he will regularly and seasonably pay all such taxes, and assesments as may be lawfully imposed upon said premises.
In case the said second party, his legal representatives or his assigns, shall pay the several sums of money aforesaid, punctually and at the several times above limited, and shall strictly and literally perform all and singular his agreements and stipulations aforesaid, after their true tenor and intent, then the first party will make unto the said second party, his heirs or assigns, (upon request at the Land Office, at Cedar Rapids, and the surrender of this contract), a deed conveying said premises in fee simple, with the ordinary covenants of warranty. But in ease the second party shall fail to make the payments aforesaid, or any of them, punctually and upon the strict terms and times above limited, and-likewise to perform and complete all and each of his agreements and stipulations aforesaid, strictly and literally without any failure or default, the times of the payments being of the essence of this con-1/ract, then the first party shall have the right to declare this contract null and void, and all rights and interests hereby created, or then existing, in favor of said second party, or derived under this contract shall utterly cease and determine, and the premises hereby contracted shall revert and revest in said first party, (without any declaration of forfeiture, or act,
And it is further stipulated that no assignment of the premises shall be valid unless the same shall be indorsed hereon, or permanently attached hereto and countersigned by the proper officer of the company, (for which purpose the contract must be sent to the office of the company by mail or otherwise,) and that no agreement or conditions or relations between the second party, and his assignee or any other person acquiring title or interest through or from him, shall preclude the first party from the right to convey the premises to the said second party, or his assigns on the surrender of this agreement, and the payment of the unpaid portion of the purchase money, which may be due to the first party.”
In witness, etc., (duly signed and stamped.)
3. The principal business office of the plaintiff has always been at Cedar Rapids, Iowa, and the defendant resided 250 miles distant, at Missouri Yalley. The contract was made at Cedar Rapids, and sent to L. Burnett, to be delivered to defendant upon payment of the first installment of the purchase money. Some difference existing about the amount, Burnett kept the contract about two weeks, when Brown took the contract to defendant and received the first payment. Brown was the local agentat Missouri Yalley for the plaintiff, and received and delivered contracts and the like, but had no power to sell or fix the price upon lands, or in any manner alter the contracts of plaintiff.
The second payment fell due June 30, 1872, which was Sunday. There were two trains each way on the Chicago & Northwestern Railway, between Missouri Yalley and Cedar Rapids at that time, one leaving Missouri Yalley every morning except Sunday morning about 6:30, and arriving at Cedar Rapids about 8:30 p. m., of the same day; and, the other train leaving Missouri Yalley about 6:30 p. m., every day except Saturday, and arriving at Cedar Rapids about 7:30 next moni
“Office of the Iowa Railroad Land Co., Cedar Rapids, July 2, 1873.
The within contract not being complied with on the part of said W. D. Mickel, and being delinquent in the payment as stipulated therein, the sale is hereby cancelled, and possession of the land is hereby resumed by the Iowa Railroad Land Company.
J. B. Calhoun,
Land Commissioner.
Approved,
J. Vanderventer, President.
Countersigned,
Chas. H. Clark, Register.”
About 11 o’clock of July 2, 1872, the second payment, less three dollars, wras received by plaintiff by express from defendant. Notice of this cancellation was on that day transmitted by letter to defendant, and the money sent by defendant for the second payment was on that day returned to him by express. On the 3d day of July, 1872, the first payment was returned to Brown, plaintiff’s agent, Missouri Yalley, to be delivered to defendant, and was on the fourth day of July, 1872, tendered to defendant, and by him refused, and the same is still in the hands of said Brown, subject to defendant’s order. Defendant at once notified plaintiff that he would not recognize the cancellation, and tendered back the first pay
The defendant took possession of the land under his contract, and laid out and platted a part of it into town lots, and sold several lots, upon which improvements have been made to the amount of about four thousand dollars.
The fact that the second payment fell due on a Sunday, instead of a business day of the week, cannot have any effect upon the right of the plaintiff to declare a forfeiture, upon a failure to pay that installment at maturity. It only had the effect to delay the legal maturity one day; but it was absolutely due on the Monday following, and a failure to pay it then was a failure on the part of defendant to comply, whereby his rights under the contract were actually forfeited.
His offer to pay less than the amount due, on the day following, could not relieve the forfeiture, nor restore vitality to
Aetirmed.