87 Iowa 36 | Iowa | 1893
It appears that prior to the year 1870 a college was established in the city of Des Moines, on Pleasant street, and known as the ‘‘University of Des Moines,” the appellee in this case. The original campus consisted of about five acres, upon which there
The appellee thereafter sold its property on Pleas- • ant street, took down its building which had been used thereon, and with the material, and with such other materials as were necessary, erected one of the buildings on the new site within the time fixed by the contract, and opened its school therein. Subsequently the contract was modified by striking out the clause providing for the payment of ten per cent, of the amount realized from the sale of lots, and in lieu thereof substituting an agreement to convey to parties to whom the appellee might sell all the lots in blocks 24 and 28 in the addition heretofore referred to. The foundation for the second building provided for in the contract was put in, and a portion of the materials brought upon the ground, within the time provided in the contract, but it was not completed; and an extension of time of one year was granted to the appellee in which to complete said building. This second building was, however, not completed until long after the time provided in the year’s extension. Another modification of the contract was made in May, 1886, when one of the blocks of land in controversy was conveyed by the appellant to the appellee to enable appellee to incumber it by mortgage to secure the payment of one thousand, five hundred dollars, which was done; and the appellee immediately thereafter reconveyed the said lot to the appellant, with the understanding that the appellee would pay off said incumbrance, and that it ' should be paid out of the first proceeds arising from the sale of lots in that block. On April 15, 1888, the appellee sold to one Chapman one of the lots upon which said mortgage had been given, for the schedule price fixed between the appellant and'the appellee, and applied to the appellant for a conveyance of the same to the said Chapman. The appellant refused to make such conveyance, and this action was brought for specific performance.
The material question, which seems to overshadow all others in the contract, is the establishing and maintaining “a college of standard grade.” A failure to do this forfeited all of the plaintiff’s rights, in accordance with the following provisions of the contract: “It is further agreed and stipulated that if the said University of Des Moines shall fail to maintain a college of standard grade on said'grounds for a period of one year, at any time within the next ten years, then ’ this agreement shall be null and void, and the said campus grounds shall revert to the party of the first part, or the value of the same shall be paid to the party of the first part in cash, together with all sums of money, principal.and interest, received by'said university from the sales of the lots above described.” So important was this matter of maintaining a college of “standard grade” deemed, that a failure.so to do created a forfeiture, by the express terms of the contract. If, as is now contended, a failure to erect the second building within time fixed should have the effect of cutting off a part of the rights of the plaintiff to enforce the contract, would it not have been natural that such result should have been expressly provided for, and not left open to the uncertainties of construction? The silence of the contract in that respect, in view of the fact that forfeiture was provided for a failure to maintain a college of standard grade, is a circumstance, it seems to us, indicative of the defendant’s intention. In view of the provisions of the contract, and the situation of the plaintiff, — hereafter more fully considered, — is it not fair to presume
Again, it will be noticed that an extension of time for one year, in which to complete the second building, was granted the plaintiff. Nothing was said at this time to indicate that the defendant intended to treat time as the essence of the contract. July 21, 1886, and about thirty days after the expiration of the time allotted the plaintiff in which to complete the second college building, the defendant undertook, by resolution of its board of directors, to forfeit all rights of the plaintiff under the contract, so far as blocks 24 and 28, in the addition heretofore referred to, were concerned. But it does not appear that notice of the defendant’s action in that respect was ever given the plaintiff. The defendant knew that, after the expiration of the time fixed in the contract for the completion of the second building, the plaintiff was erecting and did erect it; and in fact it appears to be such a building as fully complies with the terms of the contract, as to size and cost. It permitted the plaintiff to thus expend fifteen thousand dollars or over on the faith of the contract, without notifying the plaintiff that it should treat any of the rights given it under said contract as, forfeited by reason of the plaintiff’s failure to complete the building within the time fixed. Having so acted as to justify the plaintiff in the belief that the erection of the second building, though not within the time as extended, would be treated as a compliance with the terms of the contract in that respect, the defendant ought not now to be permitted to say that time was in fact the essence of the contract. The objections by the defendant
It is insisted that one of the inducements for making the contract, so far as the defendant was concerned, was the completion of this building, which would be an additional incentive to persons to purchase lots of the defendant. No doubt the erection of this building within the time contemplated would have had a tendency in that direction. But it does not appear that the defendant suffered any mateiial detriment by reason of the plaintiff’s failure to so erect it, and, in the extension of time granted the plaintiff, stress was laid upon maintaining “a college of standard grade,” not on the completion of the second building. Waterman on Specific Performance, section 482.
There is another feature of this case which tends to support the view that the defendant did not consider time as especially important, so far as the completion of the second building was concerned. It was agreed that the lots heretofore mentioned should be conveyed as soon as sold by the plaintiff, while by the terms of the contract, as extended, the plaintiff was given two years thereafter in which to erect the building in controversy. It was also provided that, in case of a failure to maintain the school, the proceeds of lots so sold should be paid to the defendant. Now, it is manifest that it was in contemplation of both parties that the lots might all be sold before the time expired within which the building was to be completed. These provisions of the
The evidence abundantly shows that the courses of study pursued in the plaintiff’s college were up to the average of the colleges of Iowa, if not above them; that the professors and teachers were of good ability, and well qualified for their respective positions. It is shown that they worked for small compensation. Surely, that does not affect their ability, nor necessarily their efficiency. It appears that their work has been faithfully and conscientiously done. It is urged that a college cannot be a college of “standard grade” when the professors also teach in the preparatory department. If that be so, then it is clear, from the evidence in this case, that there is in Iowa no denominational college of “standard grade.” Such double duty is shown by the evidence to be the rule, and not the exception, in colleges in Iowa, generally. It is said that the plaintiff did not have sufficient apparatus to constitute^ a college of standard grade. Doubtless, any amount of apparatus which a college might be able to purchase would be useful, but it by no means follows that it would all be indispensable. It appears that it had sufficient apparatus for ordinary purposes. The term “college of standard grade” is elastic, and as we have indicated, must be construed in view of the surroundings of the parties when they contracted, and of the buildings required by defendant, in which the school was to be carried on. "We conclude, then, that the plaintiffs have maintained a college of standard grade, in compliance with the contract.
It is conceded that the specific execution of a contract, in equity, is not a matter of absolute right, but it is a remedy, the right to which rests alone in the sound discretion of the chancellor — a discretion controlled by established principles of equity, in view of all the facts and circumstances attending the case presented. 3 Pomeroy’s Equity Jurisprudence, section 1404; 1 Story on Equity Jurisprudence, section 742; Grimes v. Hamilton County, 37 Iowa, 290; Palo Alto County v. Harrison, 68 Iowa, 81, 90; Clark v. Maurer, 77 Iowa, 717, 720; Thurston v. Arnold, 43 Iowa, 43.
To our minds, this is a case which entitles the plaintiff to a decree of specific performance. The judgment of the district court is affirmed.