145 P. 2 | Mont. | 1914
delivered the opinion of the court.
On March 17, 1905, the plaintiff and the defendant Austin North entered into a contract under the terms of which the plaintiff agreed to sell to this defendant a number of blocks and lots situated in the city of Billings and Foster’s addition thereto, in Yellowstone county. The consideration for the contract was the sum of $25,000, to be paid by North in installments as follows : $1,000 in cash upon the execution of the contract, $5,000 on March 17, 1907, a like sum on March 17, 1908, and the balance of $10,000 on March 17, 1909, with interest on any installment not paid when it should become due at the rate of 8 per cent per annum, payable on March 17 of each year. The defendant was to pay all taxes and assessments, ordinary and extraordinary that might be subsequently levied and assessed against the property or any part of it. Upon default by defendant in the payment of any installment of the purchase price or interest thereon, or of any taxes or assessments upon the property, plaintiff might, at its option, declare the contract null and void and no longer binding upon it. In such ease the property, together with all payments, should thereupon be and remain the property of the plaintiff, its successors and assigns, the defendant thereafter to have no right or interest therein or right of action to recover it or any installment of the purchase money
The answer does not controvert any of the material allegations in the complaint, except that it is denied that the plaintiff made written demand upon North for payment of the balance of the purchase price, or that it thereafter gave notice of its election to forfeit the contract. It does not allege facts upon which defendant seeks affirmative relief. It states as separate defenses the following: (1) That after the execution of the contract the defendant North paid to the plaintiff $10,870, but that plaintiff did not at any time prior to the bringing of the action offer to repay to the defendant this amount or any part of it; (2) that after defendant went into possession he expended large sums of money in installing a water supply, in grading the streets and alleys, and otherwise improving the property, but that plaintiff did not, before commencing the action, pay to the defendant the money so expended, or any portion thereof; (3) that after default by defendant in making payment, the plaintiff accepted various payments from him, applying the same upon the contract without objection; that by this conduct it had led the defendant to believe that it intended to extend the time of payment fixed in the contract, and that it thereby waived its right and estopped itself to declare forfeiture of the contract under the stipulation therein; and (4) that plaintiff at no time before commencing the action offered to restore to the defendant the benefits it had received under the contract.
The findings of fact and conclusions of law by the trial court were in favor of plaintiff, and a decree was entered awarding it the relief demanded. The defendants North have appealed from the decree and an order denying their motion for a new trial. A recital of the facts relating to the deed from Yellowstone county has been omitted from the foregoing statement, for the reason that no appearance was made at the trial by the
1. The first contention made is that the court erred in overruling defendants’ objection to the introduction of evidence. It
2. The same may be said of the contention that the purpose
3. It is contended that the decree cannot stand because the complaint contains no allegation on the subject, and the evidence
As already stated, the assumption of counsel for defendant has no basis in fact. The answer does not allege facts to.justify, nor does the prayer demand, affirmative relief of any kind. It is defensive merely, and alleges only matter which goes to the sufficiency of the complaint, from the viewpoint of counsel. Therefore a case is not presented warranting relief to the defendant. In order to avoid the consequences of his default, we can see no reason why the defendant should not be required to bring himself within the equity of the statute as interpreted in Cook-Reynolds Co. v. Chipman, Fratt v. Daniels-Jones Co., and other eases cited above.
Apart from these considerations, there is not in the record any evidence touching the value of the improvements, other than
4. Although by its express terms time is made of the essence of a contract, and an option is reserved by the vendor to declare it terminated for failure to pay the purchase price at the date
5. So far as they are questioned by the contentions of counsel, we think the findings of the trial court are amply justified by the evidence and fully support the decree. It is true that it
The judgment and order are affirmed.
'Affirmed.