Peterson v. Moore, 3 Alaska 155

3 Alaska 155 | D. Alaska | 1906

GUNNISON, District Judge.

Plaintiff seems to have failed entirely to live up to the conditions of the agreement into which he entered on September 5, 1901. There is nothing in the whole course of his conduct in this matter to show that he—

“in good faith co-operated on the basis of this settlement to end all disputes and litigation, so that the title of all concerned within the limits of said award * * * should be settled permanently.”

On the contrary, every step taken by him seems to have hindered and embarrassed the defendants in carrying out their part of the contract. He relies on newspaper advertisements to advise them that he was about to leave, but refuses to be bound by the notices of defendants published about the same time in the same newspaper. He leaves his property in Skagway in charge of an agent authorized only to collect rents. His property was rented and he received the income therefrom during most of the time, until defendants, by accident, ascertained his whereabouts. Instead of going to the defendants’ office and notifying them that he was about to leave Skagway and what his future address would be, he goes away, entirely ignoring his part of the agreement with defendants; but he still insists upon his “pound of flesh” from them. A news item in a daily paper cannot be relied upon as notice, no matter how reliable a newspaper may be. Nor does he ever demand a deed until after the defendants accidentally discover his whereabouts in July, 1903. On the other hand, the evidence discloses that the defendants have, during the entire transaction, acted in the utmost good faith.

The plaintiff asserts that no tender was made until July or August, 1903, and relies upon that assertion as an excuse for refusing to give the mortgage and notes bearing interest from July 20, 1902. It is true that a technical tender, such as that required in the discharge of debts and contracts, to pay money, was not made by defendants until 1903. But a distinction is made between that character of tender and the tender of performance of a contract other than for the payment of money.

“Tlie word ‘tender,’ as used in such connection, * * * means a readiness and willingness, accompanied with an ability on the part of one of the parties, to do the acts which the agreement requires him to perform, provided the other will concurrently do the things which he is required by it to do, and a notice by the former to the latter of such readiness. Such readiness, ability, and notice are sufficient evidence of, and indeed constitute and imply, an offer or tender in the sense in which those terms are used in reference to agreements generally.” 1 Beach on the Modern Law of Contracts, § 297.

In every respect the defendants’ case meets these essentiáls. Not only does the evidence show a readiness, but a desire, on defendants’ part to comply with the terms of the agreement. Their ability to do so is not controverted, and the notices, Defendants’ Exhibits Nos. 1 and 2, printed many times in conspicuous places in the Skagway Daily Alaskan, seem to the court to have been sufficient notice to plaintiff, under the conditions as disclosed by the evidence.

It is a fundamental maxim that “he who comes into equity must come with clean hands.” Plaintiff plainly ignored the notices, though he testified:

“No, I had not been advised in such a way that I could take cognizance of it, although there was a rumor that he was going to get a patent. I saw in the paper that he was going to have a patent for it. I never had any direct notice that defendants were ready or prepared to issue deed.”

His testimony, taken by commission, indicates plainly that, though he was about to leave Skagway, and though he was generally advised that a patent would soon be or had been received, he took no steps to advise them of his future address or arrange for the transfer of the title: Instead, he rents his property for $50 per month and leaves the city. It was held in Boone v. Missouri Iron Co., 58 U. S. (17 How.) 340, 15 L. Ed. 171, that negligence in the performance of one’s part of a contract will extinguish one’s equity, so as to bar him from seeking specific performance. The case at bar exhibits, not negligence, but that which is worse, a deliberate disregard of his obligation under the contract. Whether or not specific performance shall he granted rests in the judicial discretion exercised' according to the settled principles of equity, yet always with reference to the facts of a particular case. Marble Co. v. Ripley, 77 U. S. (10 Wall.) 339, 19 L. Ed. 955; Hennessey v. Woolworth, 128 U. S. 438, 9 Sup. Ct. 109, 32 L. Ed. 500; Pope Mfg. Co. v. Gormully, 144 U. S. 238, 12 Sup. Ct. 637, 36 L. Ed. 419; 1 Beach on Eq. Jurisprudence, § 566. But, where the obligation of the party seeking relief is not fairly and fully performed, the court will refuse the remedy. Marble Co. v. Ripley, supra.. Under the agreement, defendants were—

“within 30 days from the receipt of the patent * * * to make out, execute, and deliver * * * a warranty deed * * * upon their [plaintiffs’] payment to them at the time of delivery 25 per cent, of the value of the lot.”

Defendants notified plaintiff generally, as they did every other claimant, of their readiness to proceed. Not alone that, but they sought him when he failed to respond, that they might, proceed with the terms of the agreement. Plaintiff’s conduct was such that it was impossible to comply therewith. -

There seems to be nothing in the plaintiff’s case to appeal to the conscience of the court. Plaintiff is, however, upon payment of the agreed price, entitled to receive a good*and sufficient deed to the premises described in the contract of which he is the claimant. But he can no longer claim the right to elect as to how he shall pay therefor. The time for such election has long passed because of his own acts. De^-, fendants should prepare and deposit with the clerk of this court, in the city of Skagway, Alaska; a good and sufficient, deed in fee simple, conveying to plaintiff the premises in question within 30 days from the entry of a decree herein, for delivery to plaintiff, upon his payment of the contract price of said lots, to wit, $575, with interest at the rate of 6 per • cent, from the 20th day of July, 1902, to the date hereof, together with the costs of this suit, said premises to be free and clear from any and all incumbrances, save and except1 any local taxes or assessments that may have accrued since said July 20, 1902. When the parties shall have complied: with the decree herein, they should execute, each to the other,'a full and complete satisfaction of all demands made and claimed herein. In all other respects, the prayer of the ^petition should be denied, and the costs hereof should be' paid by the plaintiff herein.

Let a decree be entered.