98 Minn. 366 | Minn. | 1906
Respondent, a resident of Philadelphia, owned the premises in question, located in Minneapolis, and listed the same with the Tabour
•With the interest rate changed from five to six per cent., and with the understanding that purchaser assumes and agrees to pay taxes which ac'crue this winter. I hereby approve of the above contract. Edward T. Parry.
The instrument was thereupon returned to Minneapolis and submitted to appellant, and she added the following:
I hereby approve of the modifications concerning rate of interest and payment of taxes of my contract for the purchase of lots one and two, in block seven, in Lakeview addition, Minneapolis, Minnesota, and agree to purchase said lots upon the. conditions prescribed by said contract and the modifications ■thereof. Addie M. Libby.
The record does not show the exact dates these changes were made and the writing finally executed, but, in pursuance of the contract, December 21, 1904, the vendor executed and forwarded to the Tabour Realty Company a deed to the premises conveying the same to appellant, and for a few weeks thereafter the deed was held in abeyance for some reason which does not clearly appear. At any rate the vendor, on February 15, 1905, sent a letter to the Tabour Realty Company withdrawing the deed. Appellant, claiming a right to enforce the con
The original instrument was in the form of an option, and its terms could not be enforced after the expiration of the time mentioned. The vendor had agreed to sell the premises upon certain terms, but the purchaser was under no obligation to make the purchase. She had the privilege of forfeiting the $50 earnest money and abandoning the contract. Womack v. Coleman, 92 Minn. 328, 100 N. W. 9. But after the vendor had changed the contract, and raised the rate of interest from five to six per cent., and required the vendee to assume the payment of current taxes, the vendee then changed the terms of the agreement and expressly agreed to purchase the premises, thereby transforming the option to a contract of purchase. Time was not made the essence of the contract, and, consequently, conceding appellant was in default in not making the cash payment within sixty days, the contract could not be terminated except by giving the notice required by chapter 223, p. 431, Taws 1897. Such notice was never given, and at the time of the trial appellant had not waived her rights by the mere lapse of time. Respondent insists, however, that appellant never made any payments, not even the $50 acknowledged as paid in the original option, and not only did not pay the $450 within the time limited in the contract, but made no effort to do so,- and was not prepared to do so, and for that reason, if for no other, the vendor was justified in withdrawing the deed upon the ground that appellant had abandoned the contract.
Merely withdrawing the deed would not of itself terminate the contract, in the absence of the notice required by the statute, but there was evidence tending to show that appellant had made preparation to make the payment, and that the money was actually in the hands of the Tabour
Order reversed and new trial granted.