58 Minn. 353 | Minn. | 1894
Prior to February 26, 1890, plaintiff and defendant entered into an agreement — verbally, it would seem — whereby the former was to purchase of the latter an eighth interest in a certain forty acres of land. At this time plaintiff knew that the land had not. been patented by the general government, and that it was expected that the patent would soon be issued to one Olson, who was under obligation, as soon as the patent came, to deed to defendant, or, possibly, to some other person from whom he would obtain title.-. On the day last named plaintiff wrote to defendant, inclosing his check for $1,000, — the amount agreed upon as the purchase price,— saying, “You can consider this as a loan until Such time as you can send me a proper deed for an undivided one-eighth interest in the” land, describing it. Four days later defendant acknowledged the receipt of this letter, with the inclosure, and said, “I will send you a deed in a day or so.” It appears that when purchasing plaintiff knew that there were three persons besides defendant then interested in the purchase from Olson, each to have a one-fourth interest. He was also informed as early as August 29, 1890, that it was understood that Olson was to deed to one of these persons, — O. D. Kinney, —and that the latter was then to convey to each of the other persons according to their respective interests. The patent to Olson bore date December 13, 1890, and was received by him January 8, 1891. He conveyed to Kinney October 19th following. It was shown that on several occasions between the day plaintiff paid the full purchase price for the land and the 1st of October, 1891, he had inquired of defendant and of Kinney for the deed, although he had never made a demand for it, nor had he demanded a return of the money, nor had he expressly repudiated his agreement to take the land. On October 21, 1891, plaintiff brought an action to recover from defendant the amount paid as the purchase price with interest, but for some reason, not apparent from the record, the action was dismissed by the court on trial. After the action was commenced,
Upon the trial in the court below it was the contention of plaintiff’s counsel that under the agreement between the parties it was incumbent upon defendant to procure title to himself from Olson, and to -convey, or to offer to convey, to plaintiff an undivided one-eighth interest in the forty acres, within a reasonable time after the patent had been issued and delivered to Olson; and further that, in case he failed to do so, no demand upon him was necessary in order to put him in default, and to make him subject to an action for the recovery of the amount paid. It was the theory and position of counsel for defendant, as stated in his brief, that the money received from plaintiff was to be regarded as a loan until such time as he could send plaintiff a deed executed by himself or by Kinney; that he caused Kinney to execute and deliver the deed as soon as he could, and that the delay which occurred was acquiesced in and waived by plaintiff.
The court first charged (correctly) that if the jury found the agreement to have been that the deed was to come from defendant himself, not from Kinney, the plaintiff was entitled to a verdict, because he was not obliged to accept a deed executed by any other person. It further charged, in substance, that if the agreement was that Kinney was to execute the deed, it was defendant’s duty to cause the same to be executed and delivered within a reasonable time after the issuance of the patent. What was a reasonable time was to be determined from all the facts and circumstances in evidence. No exceptions were taken by defendant to these instructions, but along the line on which he tried the case his counsel requested the court to charge — First, that if the jury found the agreement to have been that defendant was to procure Kinney to make the deed as soon as he could, and'that it was procured as soon as defendant could get it, and promptly forwarded to plaintiff, the latter could not recover; second, that if it was found that defendant,was to obtain title to the land in
Now, time was not made of the essence of this contract in terms. In fact that plaintiff vendee anticipated, if he did not invite, delay, is evidenced by his letter transmitting the purchase money to defendant vendor, in which he remarked that the latter might consider the money a loan until such time as he could send a deed. Nor was
Of course, the neglect of either party to perform the conditions of the agreement at or within the time or times stipulated, or, when no time is specified, within a reasonable time, may in some instances amount to, or at least be evidence of, an intention to repu
By reference to the charge of the court heretofore mentioned it will be seen that these rules were not regarded as governing the case. The court charged that if Kinney was to execute the deed it was incumbent upon defendant to cause the same to be executed and delivered within a reasonable time after the issuance of the patent; what was a reasonable time to be determined from all facts and circumstances. The effect of plaintiff’s conduct and acts with defendant and with Kinney, which it might have found amounted to acquiescence in the delay and a waiver of it, were wholly taken away from the jury by means of this instruction. Yet, as before stated, no exception was taken by counsel for defendant. But the court refused to instruct, an exception being reserved, as asked in defendant’s second request, the substance of which has been stated. Immediately after the bringing of the first action, which may be regarded as a demand for a deed, one was executed by Kinney, sent to, and received by plaintiff. If the deed was to come from Kinney, and there was no sufficient evidence of an intention on defendant’s part to repudiate the contract, to a refusal to perform a demand was necessary before suing him for rescission. By refusing to give defendant’s second request all question of the necessity of demand under any circumstances was also taken from the jury.
We have stated that on the evidence a finding could have been made that the conveyance was to be direct from Kinney to plaintiff. It is also plain that the jury would have been warranted in finding that plaintiff’s acts and conduct amounted to a waiver of the default; and it is equally true that, except the bare fact that defendant did not exert himself to learn when the patent was issued, and then to see that Olson promptly conveyed to Kinney, and that the latter at once conveyed to plaintiff, or to himself, so that he could comply with
Order reversed.
(Opinion published 59 N. W. 1055.)