98 N.W. 408 | N.D. | 1904
In December, 1893, John H. Kicks and the State Bank of Lisbon entered into a contract for the sale of eighty acres of land in LaMoure county under the crop payment plan. Said Kicks died soon thereafter, and the plaintiff, Anna M. Kicks, succeeded to all his rights under said contract, after a due administration of his estate. The price to be paid to said bank for the 'land was $800, with 8 per cent interest on deferred payments. At the time the contract was entered into the land was wild land, without any house or improvements thereon. Under the contract forty acres were to be broken in 1893, and the balance in 1894. Forty acres were broken in 1893, thirty acres in 1894, and ten acres in 1895. There was no house on the land, and plaintiff lived on adjoining land in a house thirty rods from the land in suit. Payment was to be made by turning over to the bank one-half of the crop raised each year, and credit was to be given on the contract for such sum as the crop turned over amounted to at the then market price. Taxes were to be paid by. the plaintiff. The bank agreed in the contract to execute and deliver to Kicks a good and sufficient warranty deed of said land upon full payment of said sum of $800 and interest. Time was not of the essence of the contract, by express terms or otherwise. The plaintiff farmed the land up to and including the year 1900, and made payments on the contract, aggregating $557.37, by turning over one-half of the crops raised. Taxes were paid by plaintiff during three years, aggregating $33.35.
It is contended by the appellant that the plaintiff cannot recover in this action, for the reason that she forfeited all rights under the contract by failure to pay the taxes after the year 1895. The taxes were not paid by the bank, but by the mortgagee, to protect his security. The bank received the proceeds of the crops up to and including the year 1899, and no action was taken by it to forfeit the contract on account of such nonpayment of the taxes for those years. The bank accepted the proceeds of the crops unconditionally, without suggestion that the taxes had not been paid, and without paying them itself and deducting from the credit given on the contract the amount paid, as it had done on two previous years. Under prior decisions of this court, it cannot now claim such nonpayment as a ground for forfeiting the contract. If it desired to cancel the contract on this ground, it should have moved promptly, and by failure to do .so the default was waived. Fargusson v. Talcott, 7 N. D. 183, 73 N. W. 207; Buckholz v. Leadbetter, 11 N. D. 473, 92 N. W. 830; Ross v. Page, 11 N. D. 458, 92 N. W. 822; Russell v. Timmins, 13 N. D. —, 99 N. W. 48.
It is further claimed by appellant that plaintiff is barred from recovering in this action, because no tender was made of the
Has the defendant a right to have its counterclaim for the use of the land by plaintiff under the contract allowed? The trial court disallowed the counterclaim, and gave plaintiff judgment for the sums paid by her, with 7 per cent interest from the. date of payment. The measure of recovery in this class of actions is a matter of diverse holding, and difficult of adjustment so as to accomplish the end to be attained — to do justice between the parties by placing them in the same situation as they were in when the payments were made. A recovery is permitted against the defendant for the money received by it, on the ground that it would be unjust for it to enrich itself by retaining money paid under’a contract which it had violated. On the other hand, plaintiff has
The district court is directed to modify its judgment by disallowing interest on the sums paid and order judgment in plaintiff’s favor for the payments actually made, towit, $585.62. The plaintiff will recover costs.
Modified and affirmed.