Pritchard v. Todd, 38 Conn. 413

Pritchard v. Todd

38 Conn. 413 | Conn. | 1871

Carpenter, J.

The Superior Court in rendering judgment upon the facts found in this case, reversing the order and decree of the court of probate, must have ruled, as matter of law, either that the appellee had forfeited his right to relief for the reason that he had not paid the purchase money within the time stipulated, or that he had waived his right to a specific performance by presenting a claim against the estate of the deceased for the money actually paid under the contract. If on either ground there is a fatal objection to the decree passed by the court of probate, the judgment of the Superior Court is right, and must stand; otherwise it must be reversed.

1. Time is not necessarily of the essence of such contracts. The parties may make it so, or it may be implied from the *415nature and subject matter of the contract. It is apparent that time is not of the essence of this contract, either by the express provisions thereof or by implication. It was a parol contract, and ,is indefinite in respect to time. One hundred dollars were to be paid annually, and the interest. Whether the first payment was to be made at the time the contract was made in the winter of 1867, or at the end of the year, does not appear. The appellee took possession immediately, but paid the first installment on the 9th day of May, 1867. The receipt given for that had appended to it a statement of the price of the land, but no reference was made to the time of payment. There is nothing in the nature or subject matter of the contract to indicate that time was regarded as material by either partyand we cannot see that the appellant’s intestate or the estate suffered, or will suffer, any injury by the delay that will not be fully compensated by the interest. Putting á construction upon the contract most favorable to the appellant in regard to the time of payment, and the tender will appear to have been made not long after the last payment became due. When the money was tendered, June 15th, 1869, there seems to have been no objection made on account of time. The appellee had been in possession of the property from the time of the purchase, and had made considerable improvements thereon. We think that the delay ought not to deprive him of the right to have the contract specifically performed. Green v. Finin, 85 Conn., 178; Catlin v. Decker, ante, 262.

2. We are also satisfied that the appellee has not waived or forfeited his right to a specific performance by presenting a claim to the commissioners. He manifestly had a claim of some description upon the estate. He was entitled to have a deed of the land upon payment of the balance of the purchase money, or to have the sum paid refunded to him. He evidently preferred a deed, but could not know with certainty in advance that he would obtain one. Failing to do so, his only redress would have been the presentation of a claim. Had he delayed that until his right to a specific performance had been judicially determined, it might have been too late. *416If then the decision had been adverse, he would have been without remedy. Under these circumstances we think he was justified in pursuing both remedies. He is entitled however to only one satisfaction. If he obtains his deed, that is a bar to his claim against the estate, and the court of probate, in the final disposition of the estate, can decree accordingly.

The judgment of the Superior Court is erroneous, and must be reversed.

In this opinion the other judges concurred.