66 P. 1021 | Kan. | 1901
The opinion of the court was delivered by
The sole ground of error relied on by counsel for the defendant for reversal of this decree is that no consideration was given or received by either party for the making of this stipulation, and that, on account of the delay of the trustee of the estate in complying with the terms of the stipulation, the defendant had the right to rescind it and to refuse compliance therewith, and that the trial court erred in decreeing compliance with its terms.
With this contention we do not agree. Counsel errs in the contention made that the stipulation lacks consideration. The estate had a mortgage on the entire tract of land and a suit to foreclose the same was pending. Whether or not this mortgage was valid as to the entire tract was undetermined. In the stipulation for compromise and settlement the estate not only waived its right to insist on a foreclosure and sale as to a part of the land, and permitted it to descend to the defendant as heir at law unencumbered, but dismissed its suit at its costs, and refrained from the bringing of another. It is well settled that this is ample consideration for the stipulation.
Again, by the terms of the stipulation, time is not made of thp essence of the contract. Either party, therefore was entitled to a reasonable time, under all the circumstances of the case, to offer compliance with its terms. The representatives of the estate lived at a great distance from the property. The defendant was occupying and enjoying the use of the entire property. There is no showing of damage to
Upon this state of facts, the trial court refused to excuse compliance with the terms of this stipulation by the defendant and decreed its enforcement. With this conclusion we agree. Whether or not specific performance of a mutual contract shall be decreed, considering all the facts and circumstances of the case which go to make up its equities, rests largely in the
Again, where a mutual contract is equitable, and fairly entered into by the parties, and time is not expressly made of the essence of the contract, and neither party thereto has expressly by act or deed repudiated the binding force of the same, and one party •seeks to evade its obligation on the ground of the delay of the other in tendering performance, he must show either damage resulting to himself or such wilful and intentional delay as to evince the intention of the party delaying to treat the contract at an end. Mr. Pomeroy, in his work on Equity Jurisprudence (2d ed.), section 1408, says :
“In all ordinary cases of contract for the sale of land, if there is nothing special in its objects, subject-matter, or terms, although a certain period of time is stipulated for its completion, or for the execution of any of its terms, equity treats the provision as formal rather than essential, and permits a party who has suffered the period to elapse to perform such acts after the prescribed date, and to compel a performance by the other party, notwithstanding his own delay.”
Mr. Waterman, in his work on Specific Performance, section 456, says:
“At law it is incumbent on the plaintiff to show performance on his part within a reasonable time, or if the time be fixed, within such time. But equity, distinguishing between terms of the contract which are matters of form, and a breach of which it would be inequitable in either party to insist on as a bar, and such as are of the substance of the agreement, and applying to contracts the principles which have governed its interference in relation to mortgages, holds time to be, prima facie, non-essential.”
“Although no time is fixed in the contract, a party will not be permitted to trifle with the interests of the opposite party by unnecessary delay; and the latter may designate some reasonable time — not capriciously or unreasonably, or for the purpose of surprising the other, and thus getting clear of a bargain, but a reasonable time according to the circumstances of the case — within which he will expect performance, or that the agreement will be rescinded. The time named in the notice must be sufficient for the proper closing of the transaction ; and neither party will be permitted arbitrarily and suddenly to terminate the negotiation.” (Taylor v. Brown, 2 Beav. 180; King v. Wilson, 6 id. 124.)”
In the case at bar the defendant remained in the possession of the entire tract of land; no damage to her was shown by the delay of the representatives of the estate in releasing the mortgage. Both parties, until the 12th day of November, at which time the defendant tendered her deed, treated the contract in force. It would not be consistent with equity and good conscience to permit her to tender her deed under the terms of the stipulation and division of the common property which modified the original stipulation to some extent on the 12th day of November, and at the same time give notice to the representatives of the estate living at a great distance that, unless settlement according to the terms of the stipulation was made within one week, the contract would be treated by her as ended and she would refuse further to be bound by its terms ; nor, in pursuance of such notice, to terminate the contract and refuse performance tendered by the estate on November 23, on the sole ground of the delay and notice, without offer on her part to restore the estate, so far as within her power,
The decree as entered appears to be in harmony with equity as between the parties, and is, therefore, affirmed.