115 Wash. 503 | Wash. | 1921
The purpose of this action was to quiet the title to certain real estate in Stevens county, Washington. By answer the’defendants sought to require the plaintiffs to perform a certain written contract concerning such lands. The court made findings, conclusions, judgment and decree in favor of the defendants. Plaintiffs have appealed. There is very little dispute in the facts, which are as follows:
The appellants, being the owners of the lands mentioned, entered into a written agreement with the re
“It is further provided that time of payment is of the essence of this agreement, and in case second parties (respondents) do not make the payments hereunder at the time herein specified that the first parties (appellants) may go to said Spokane & Eastern Trust Company and withdraw said deed and this agreement, and thereupon all sums paid by second parties hereunder shall be forfeited unto first parties, and all rights hereby created to second parties, or either of them, shall cease and terminate.”
On the due date in 1918, to wit July 'l, the respondents mailed to the escrow holder their check drawn on a Seattle bank for the amount necessary to reduce the principal sum to $2,500, and at the same time sent to the escrow holder their promissory note and mort
The appellants have rested their case upon the fact that the respondents did not make the July, 1918, payment at the time provided for in the contract, and are insisting upon strict performance as to time of payment. It is our opinion that they are in no position to claim default. The testimony shows that all the payments provided by the contract were made by the respondents and received without objection by the appellants, on occasions running from several days to several weeks subsequent to the time provided in the contract for such payments. 'Parties have a right to agree that payments must and will be made at a designated time, and that, if not so made, the contract may be terminated and a forfeiture declared, and the courts will strictly enforce such agreements. But the parties,
Under this contractthe appellants had received, without objection, the previous payments, all of which were made after the time provided in the contract. By such conduct they waived strict performance as to time of payments, and having waived it they could not claim a forfeiture until they had given respondents notice of their intention so to do and a reasonable time within which to make the overdue payment. The judgment is affirmed.
Parker, O. J., Mackintosh, Fullerton, and Holcomb, JJ., concur.