50 Minn. 186 | Minn. | 1892
This is an action to enforce the specific performance of a contract for the sale of land. The defendant, through
Finally, on the 17th day of December, 1888, defendant procured a judgment removing the cloud upon the title of the lots in question, and making the same good and marketable.'
About one month prior to the recovery of such judgment clearing the title, the plaintiff, whose permanent residence was and has since been in the city of St. Paul, went to England on a visit, and did not
Defendant was at the time of the execution of the contract, and ever since, a resident of the city of Pittsburgh, in the state of Pennsylvania. During plaintiff’s absence the partnership of which he was a member had a regular place of business in St. Paul, which was occupied by his partner, Smith, in behalf of the firm. It does not appear that plaintiff had any other place of business, or that there was any other place where papers or notices could be served. As soon as the judgment above referred to perfecting defendant’s title had been entered, the defendant, by his attorney, caused an abstract of title, as contemplated by the contract between these parties, to be prepared and duly certified, showing a good and marketable title to the premises in the defendant, and on the 26th day of December, 1888, left the same at the office of the firm of Paget- & Smith, the partnership to which plaintiff belonged, as above stated, and delivered the same, for the plaintiff, to his partner, Smith, who was then and there in charge thereof, and then and there stated to Smith that the abstract was so left for the plaintiff. No other person than Smith, so far as appears, had any authority to act for plaintiff at St. Paul in his absence, but no express authority was given to him or to any one by plaintiff to represent or act for him during his absence in respect to the matter of the contract in question. Prior to the date last referred to, defendant had executed in due form, and forwarded to his attorneys in St. Paul, a good and sufficient deed, as required by the contract, to be delivered to the plaintiff on his compliance with the terms of the contract upon the production and delivery of the abstract. Immediately upon his return, plaintiff, on the 14th day of February, 1889, ascertained from an examination of the records that the judgment in defendant’s favor, above described, had been entered, and that the title was thereby perfected. The court finds that from the time the abstract was de
Furnishing the abstract was an essential condition to be performed on defendant’s part before he could call upon the plaintiff to make payment. 1 Warv. Yend. 283.
It was his right and duty to perform such condition promptly after the title was perfected. In respect to the payment by plaintiff of the first installment within ten days thereafter, time was made essential by the contract, so that the most important question in the case is whether the delivery of the abstract to plaintiff’s partner at his office, with notice of the purpose thereof, as above stated, was a performance of the stipulated condition on defendant’s part so as to set the time running, and put plaintiff in default if the payment was not duly made or tendered by him. We are of the opinion that, under the circumstances, the delivery of the abstract in the manner stated constituted a compliance with the contract by defendant. Plaintiff had notice of pendency of the suit when he left the state, and knew that the defendant would be entitled to furnish the abstract if it should terminate favorably. He was bound to be ready for the contingency in case it should occur in his absence. He could not, by his absence from' the state, suspend the operation of the contract, or the performance of the condition. Defendant’s agents resided in the same city. If the plaintiff intended to be absent from the state for several months, or for an indefinite time, it
It is not necessary to determine what the rule would be if plaintiff had been temporarily absent within the state.
The contract in terms provided that, if payment was not made as stipulated, the defendant should be absolutely discharged from any liability under the contract. The abstract was furnished December 26, 1888. Plaintiff returned February 14, 1889, and made tender of payment March 30, 1889.' .He was then in default, and defendant had waived no rights. He simply remained upon the defensive. He was not obliged to do anything more than he did do. Plaintiff was in default, and the contract was at an end when this suit was brought.
We deem it unnecessary to consider any other of the assignments of error.
Order affirmed.