212 N.W. 908 | Minn. | 1927
Defendant sold a farm to plaintiffs by a contract for deed. They were given credit for a small farm conveyed to defendant. The balance was $27,830. On February 18, 1925, plaintiffs assumed the right to rescind and brought this action.
1. The alleged right to rescind rests on the claim that defendant on January 28, 1925, entered into a written lease renting the farm to one Benson for three years from March 1, 1925. It is claimed upon authority of Engel v. Mahlen,
2. Plaintiffs are not seeking performance. They are in default. They are seeking to utilize the making of the lease as a breach of the contract to establish a right to rescind and escape performance. No demand upon defendant was ever made by plaintiffs for performance. The right to rescind on the ground of failure of performance belongs to the party who is free from default. Mason v. Edward Thompson Co.
3. Defendant has at all times been ready, willing and able to carry out the contract. Oral evidence was received showing that the lease was made "subject to the contract" with plaintiffs. This is assigned as error under the claim that it violated the parol evidence rule. We construe the testimony as meaning that the lease was to become operative and binding only in the event of plaintiffs' failing to relieve themselves of their default in the terms of the contract. The evidence was admissible. Westman v. Krumweide,
4. A statutory notice of cancelation of the contract with proof of service was received in evidence over the objection that it was inadmissible because the mortgage registration tax was not paid. G.S. 1923, § 2328. This was error. Engel v. Mahlen,
5. It is claimed that the evidence does not support the finding of abandonment. Plaintiffs took possession of the farm on March 1, 1922, and they were to pay interest from that date at the rate of 6 per cent per annum. On January 1, 1925, they were in default to the extent of $4,678.74 interest and $1,100 on principal. They failed *433 to pay taxes subsequent to the first half of 1923 due in 1924. Mr. Stadelmann told the tenant that it was all right to lease the farm. They could not make their payments and he so stated. Late in February, 1925, they rented and moved on another farm. They consented to the tenant taking possession. Mr. Stadelmann was told that they would have to make their payments and he said they would have to get off. He negotiated with defendant for the rental of this farm. Later he told defendant that he had rented another farm and would move by March 1, which he did. The allegations of the complaint are not indicative of a desire to perform the contract.
It is urged that "voluntary" means acting without being influenced by another; acting by one's own accord. It is suggested that plaintiffs acted under compulsion and influence from defendant. The fact that plaintiffs' unfortunate circumstances made it necessary for them to move does not prevent their acts from being termed in law voluntary. A person becomes a voluntary bankrupt usually out of necessity. Yet he acts without being directly influenced by another. He becomes an involuntary bankrupt when his creditors force him. Here, plaintiffs, regardless of motive, left the farm according to their choice though it may have been precipitated by necessity. They acted voluntarily in that they did not wait for the mandate of the court.
The evidence supports the finding of voluntary abandonment. Graceville State Bank v. Hofschild,
Affirmed. *434