11 Ky. Op. 796 | Ky. Ct. App. | 1882
This is an action asking the chancellor to enforce the execution of an executory contract between the appellant and the appellee evidencing the sale of some real estate in the city of Newport. By the terms of the contract the appellee agreed to deliver to the appellant, within 30 days, a good and sufficient warranty deed to the property, and at the same time of the delivery of said deed the appellant agreed to give his notes for the purchase-money.
The appellee in its petition avers that since the — day of October, 1879, it has been ready, able and willing at all times to comply with the contract in every particular and so notified defendant in October, 1879, yet the defendant failed to execute his notes and mortgage, and before this suit was instituted the appellee tendered to the appellant a deed with covenant of warranty which he declined to accept, and again he tenders the deed. There was a demurrer to this petition and the demurrer overruled. The pleading is defective and the demurrer should have been sustained. It is evident that the execution of the notes was dependent upon the execution and delivery of the deed within the time provided by the contract, and an averment that the plaintiff was able and willing to perform his part of the contract of which the defendant was notified is not sufficient. It must be averred that the plaintiff delivered or tendered the conveyance within the time contracted for to the defendant, and the failure of the latter to comply, or when time is not of the essence of the contract some excuse or reason should be given why the plaintiff was unable to comply. The general rule is “that the party, seeking a specific performance must show himself in no default without presenting an excuse that will justify his default.” Here were mutual covenants to be performed at the same time, and before the party seeking performance in this class of cases can recover he must aver performance or an offer to perform before he can make the defendant liable. Pollard v. McClain, 3 Marsh. (Ky.) 24; Campbell v. Harrison, 3 Litt. (Ky.) 292.
The testimony in this record shows that the party who is seeking relief failed'to comply with his contract by making or tendering a general warranty deed within the thirty days, and that he could not have complied for the reason that his title was defective. It appears from the pleadings and proof that the appellee was to obtain from Mrs. Johnson a relinquishment of her contingent right of dower in the property conveyed, and that this was the obstacle in the way of concluding the contract by the execution of a deed at the time it was
The party offering to comply in suí^a case must show, however, that he has all the while regarded the attract as subsisting; if not, he will be denied relief. He will not be allowed to say on one day the contract is off, and on the next that it is in full force; such a rule would enable the party in default to comply if to his interest, and if not, to abandon the contract. The mere failure to comply with an existing contract like this in point of time without regard to the circumstances connected with it, is not sufficient to authorize' the chancellor to deny the relief but to make the petition good, The excuses, which are the circumstances connected with the failure to convey, must be stated. The mere delay for a few days in its execution, and the vendee not injured by it, is no ground for denying to the vendor the equitable^ right to enforce it. Is that the case here? The appellee maintains that its attorney had no right to rescind the contract. In this we concur; nor do we mean to say that the attorney assumed such a responsibility. Fie was selected by thsTappellee to perfect its title and through him alone was the appellant to know whether he could or could not obtain a title. Having been informed that the title could not be obtained, the appellant certainly had the right, after the time had expired in which to comply, to regard the contract as at an end, and to look for other investments of his means. It may not have been the fault of the vendor in an equitable view of the case that caused it to make default, but when the vendee is informed that the contract is ended and no title can be made, it is too late then to revive the contract
The judgment is, therefore, reversed with directions to dismiss appellant’s petition.