297 P. 257 | Okla. | 1931
The defendant in error brought an action in the district court of Okfuskee county against the plaintiff in error for specific performance of an agreement to convey an undivided one-fourth interest in and to the oil and gas within and under a certain tract of land.
The parties will be hereinafter referred to as plaintiff and defendant.
The record shows that the defendant agreed to convey the same to the plaintiff for a consideration of $500 to be paid upon delivery of the deed therefor; that the agreement was made on Saturday evening, January 12, 1929; that the deed was executed showing the names of the parties, the description of the land, the amount of the consideration, and the other conditions of the deed; that a draft was executed in a form, as follows:
"The First State Bank 86707 No. _____
"Castle, Oklahoma. January 12, 1929.
"3 days for approval of title.
"Pay to the Order of First State Bank F.C. Muir $500.00
"Five Hundred no/100 __________Dollars.
"Value Received and Charge to Account of "F.C. Muir.
"To R.B. McCullah, Castle, Okla.
"Customer's Draft."
— that the deed and draft were left in a bank to be held by the bank pending the payment of the purchase price evidenced by the draft; that on the morning of the fourth day thereafter the defendant withdrew the deed and draft from the bank; that on the evening of the fourth day the plaintiff went to the bank to withdraw the deed and to pay the draft, and that the plaintiff has, at all times since, been ready, willing, and able to pay the consideration therefor.
The plaintiff contends that he was to have three week days for the approval of the title and that the deed and draft were *53 to remain in the bank for three week days, which, under the record, would give the plaintiff all of the 16th to pay the purchase price. The defendant contends that the deed was to be delivered and the consideration paid within three calendar days from the date of the draft, which, under the record, would give the plaintiff no part of the 16th in which to make the payment.
That issue was submitted to the court, and the court found "that said oil and gas grant, or mineral deed, was placed in the First State Bank of Castle, Okla., in escrow to be paid for by the plaintiff in three days." The plaintiff did not appeal from the finding or judgment, and the plaintiff is bound by that finding and judgment of the trial court as to that feature of the contract.
The court further found "that the plaintiff offered to pay the consideration for said contract on the 16th day of January, 1929, and that such offer was in compliance with and not in violation of said contract and that time was not of essence of said contract."
The defendant appealed from the finding and judgment, and the only issue submitted to this court by this record is whether or not there was error in the trial court in finding that time was not of the essence of this contract.
The plaintiff testified that he was to have "three week days," and that "I understood Wednesday night that the draft was to be taken up." The defendant testified that payment was to be made 'within three days. The scrivener who wrote the draft testified that his directions from the defendant were to "give him till Tuesday night," and that he told the plaintiff, "tomorrow is Sunday and you can't do anything, and I will just make a three-day sight draft and that will carry you till Tuesday night," and that he did not make any objection to it.
The record shows that no part of the purchase price was paid and that the understanding of the parties was that the payment of the purchase price was the condition precedent to the delivery of the deed or the vesting of any right to the property in the plaintiff. The property was being drilled for oil and the well being drilled was about to be completed. The completion of the well would materially affect the market value of the property.
Under the provisions of section 5061, C. O. S. 1921, time is never considered as of the essence of a contract, unless by its terms expressly so provided. In the case of Cooper v. Ft. Smith W. Ry. Co.,
In Fulton Bag Cotton Mills Co. v. Liberty Cotton Oil Co.,
In Nelson v. Hamra,
The plaintiff relies on the holding that before time shall be of the essence of a contract it must be expressly stipulated therein and it must appear from the express provision contained in the contract, independent of all extraneous matter or circumstances, that it was the intention of the parties thereto that time should be the essence thereof, and cites in support thereof Standard Lumber Co. v. Miller Vidor Lumber Co.,
It will be noted from an examination of the decisions that the rule with reference to time being the essence of the contract and the determination thereof is much more strict with reference to written contracts than with reference to parol contracts. Where the contract is in parol and the intention of the parties is to be judged not only from what is said but from the extraneous circumstances and the conditions existing at the time, the intention with reference to whether or not time shall be of the essence shall be determined in the same manner.
This being an equity case and the finding of the trial court that time was not of the essence of the contract being clearly against the weight of the testimony, the judgment of the trial court is reversed and the cause is remanded, with directions to render judgment in favor of the defendant.
LESTER, C. J., and RILEY, CULLISON, SWINDALL, McNEILL, and KORNEGAY, JJ., concur. CLARK, V. C. J., and HEFNER, J., absent.
Note. — See under (1) 6 R. C. L. p. 899; R. C. L. Continuing Perm. Supp. 273.