73 Ark. 491 | Ark. | 1905
(after stating the facts.) The question as to whether the purchase money had been paid was purely one of fact, and the testimony bearing on this issue is somewhat voluminous. Upon a careful consideration of it, we are of the opinion that the finding of the chancellor in favor of the defendant on this point is not clearly against the weight of the evidence. But, notwithstanding this finding, we are of the opinion that the court erred in dismissing appellant’s complaint because she had failed to pay purchase money, and because she had failed to tender and bring the unpaid purchase money into court. The plaintiff was insisting that the purchase money had been paid. It was clear from the proof of credits on the notes that some of the unpaid balance, after the first payment of $400, had been paid. Plaintiff was contending that if she had received proper credits for all she had paid, the notes would have been fully paid. The defendant, on the other hand, was insisting that the balance of the purchase money had not been paid, and that she had surrendered the place back to him.
In view of the fact that plaintiff still held the bond for title, and that the defendant was still in the possession of the notes when the suit was brought, and inasmuch as there was no written evidence of a rescission of the contract of sale, we cannot find that a rescission had been made. The chancellor therefore should have ascertained the amount remaining due on the purchase money notes, or referred the matter to a master for that purpose, and given the appellee an opportunity to pay such amount, and then, if she failed to make such payment, or tender same, her bill should have been dismissed.
It is true that in cases of this kind the vendor and the vendee have reciprocal obligations, and each must be willing to perform the contract, before relief can be obtained in equity. Atkinson v. Hudson, 44 Ark. 197. It is also true that a party seeking to enforce specific performance must allege a performance of the contract on his part, or a readiness to perform. Jordan v. Deaton, 23 Ark. 704. But here performance was alleged on the part of plaintiff and a refusal to perform on the part of defendant. In such case the court, before dismissing plaintiff’s bill upon finding that he has not performed his part of the contract as alleged, should give him an opportunity to perform by paying the purchase money or performing such other obligations as are called for by this contract at the time the other party is required to perform. Wakefield v. Johnson, 26 Ark. 506; Welch v. Hicks, 27 Ark. 292; Walker v. Jessup, 43 Ark. 163; Bell v. Green, 38 Ark. 78.
The decree is therefore reversed for further proceedings not inconsistent with this opinion.
