34 Minn. 422 | Minn. | 1886
Action for ejectment. The facts found by the court which we have occasion to consider, may be briefly stated as follows: Both parties claim under a corporation known as “C. Aultman & Co.,”- the former owner of the land. In February, 1881, C. Ault-man & Co. entered into a contract in writing with the defendant for the sale of the land to him, under which the defendant was given the possession of the land, which he has ever since retained. Payments of the purchase price to the amount of $200 were made. One hundred and sixteen dollars and sixty-seven cents of the purchase price became due, by the terms of the contract, January 1, 1882, and a like sum one year thereafter. December 31, 1881, C. Aultman & Co., as is found, consented to extend the time for making the payment falling due on the following day, but such extension was not for any specified period. Again, December 29, 1882, C. Aultman & Co. consented to extend, but for no specified period, the time for the payment of the last-mentioned instalment, already due, and that which was to become due January 1, 1883. On both of the dates last named the interest then accrued upon the unpaid purchase price was paid. January 6, 1883, C. Aultman & Co., writing to the defendant concerning the two instalments then due, said: “You should make an effort to take up a large portion, if not all, of the principal now past due on your contract, and we shall expect that, during the coming months, you will get considerable money to us.” January
It is urged by the appellants (plaintiffs) that the evidence does not sustain the findings as to the agreed extensions of December 31,1881, and December 29, 1882. In the evidence returned to this court it must be admitted that there is nothing supporting the finding of such an extension made December 31, 1881; but it is apparent from a consideration of the whole case that this finding, although erroneous, cannot in any manner have affected the determination of the cause in the court below, and is immaterial. The fact, entirely distinct from this, found by the court, as to the transaction of December 29, 1882, extending the time for the payment of both of the instalments in question, is supported by the evidence, and renders unimportant the fact as to whether or not there had, prior to that time, been any extension of the time of payment, or any acquiescence in the default.
Although the terms of the original contract were, as seems to be conceded, such as to require strict performance of the prescribed conditions of payment, yet such conditions, and the right to enforce a forfeiture upon default in performance, would be effectually waived, if the party entitled to enforce the forfeiture should, after default, and
The conclusion of the learned judge whose decision is before us was to the effect that C. Aultman & Co. waived strict performance of their contract in respect to the time of payment of the two instalments under consideration. We think this conclusion was right. By the letter of January 6, 1883, following the transaction of December 29, 1882, C. Aultman & Co., while treating of the fact of the defendant’s default, unequivocally recognized the contract as still subsisting, and urged the defendant to further performance of it.
In reference to the point that such effect should not be given to the evidence, because the defendant did not in his answer plead a waiver of performance, but an extension of the time of performance, it is to be observed that no fault is found upon this ground with the facts established by the determination of the court, and no objection was interposed to the evidence showing the existence of these facts. The result declared by the court is a proper legal conclusion from those facts, and, although falling short of the allegations of the complaint, is still within those allegations, and entitles the defendant to the equitable relief sought. An extension of the prescribed time of payment would necessarily, as a legal result, constitute a waiver of the right to enforce the contract according to its terms.
Strict performance according to the terms of the contract having been waived as to the instalments then due, a reasonable time and opportunity should have been thereafter allowed to the defendant in which to make payment. The period allowed for this purpose might have been reasonably limited by notice, but could not be terminated summarily, without notice and opportunity to perform. Pomeroy on Contracts, 396, 397; Ewing v. Gordon, supra; Wiswall v. McGowan, supra; McMurray v. Spicer, L. R. 5 Eq. 527; Webb v. Hughes, supra.
Order affirmed.
