115 P. 411 | Mont. | 1911
delivered the opinion of the court.
On March 30, 1909, plaintiff Snider and defendant Yarbrough entered into an agreement in writing, by the terms of which Yarbrough leased to Snider the Stella lode claim, and agreed to sell and convey the claim to Snider on or before September 30, 1910, provided Snider paid therefor $3,500, as follows: $500 upon the execution of the agreement; $1,000 on September 30, 1909; $1,000 on March 30, 1910, and the balance on September 30, 1910. By the provisions of the agreement, Snider was given possession of the property and permitted to carry on mining operations upon accounting for fifteen per cent of the value of ores shipped, after deducting the expenses of hauling, freight and treatment, and the royalties thus paid over were to be credited upon the purchase price. The agreement provides for the execution of a deed by Yarbrough and its deposit in escrow. The concluding paragraph reads: “But, if the party of the second part [Snider] shall fail to pay to the party of the first part [Yarbrough] the sum of thirty-five hundred dollars on
There is but a single question presented, and that arises upon a construction of the peculiarly framed agreement. The instrument must be construed as an entity. "While a lease and contract to sell contained in one writing may constitute separate
The instrument cannot be treated as a contract of sale. It lacks an essential element of an enforceable bilateral agreement —mutuality. Yarbrough agreed to sell the property, but Snider did not bind himself to purchase it. The concluding paragraph
Having determined the character of the instrument, the question arises: Had Yarbrough the right to re-enter and take possession of the property upon the failure of Snider to meet the payment due September 30, 1909 ? It is insisted that the clause, “time being of the essence of this agreement,” applies only to the provisions of the last paragraph, but this cannot be so.
Because of the advantageous position held by the one who has the option, a contract of this character is construed strictly, and time is deemed to be of the essence of it. (Pomeroy on Contracts, sec. 387; 8 Current Law, 2223.) Particularly is this true if the property is of such character as to be subject to violent fluctuations in value. (Waterman v. Banks, 144 U. S. 394, 12 Sup. Ct. 435, 36 L. Ed. 479.) The rule is now quite
The clause, “time being of the essence of this agreement,” will be held to apply to every material provision of the agreement, and the failure of Snider to pay the installment due September 30, 1909, within the time agreed upon, rendered his
The complaint having alleged the failure of plaintiffs to pay the installment due September 30, 1909, as agreed upon, does, not state facts sufficient to entitle plaintiffs to any relief, and the demurrer was therefore properly sustained.
The judgment is affirmed.
Affirmed.