52 Minn. 438 | Minn. | 1893
The plaintiff sues to enforce the specific performance of a contract for the conveyance by the defendant of certain lots of land. Upon the facts found by the court, it was considered that the plaintiff was not entitled to relief. Judgment was entered for the defendant, from which the plaintiff has appealed. The contention of the appellant calls for a consideration and construction of the contract, as to whether the undertaking of the defendant to convey the land was unconditional, or-was subject to a condition precedent.
The parties to the contract were “L. L. Wright •& Company,” (consisting of L. L. Wright and Della T. Wright,) as parties of the first part, and the firm of “Cottrel & Wilcox,” of which this defendant Was a member, as parties of the second part, the contract being executed by both Cottrel and by the defendant, Wilcox, who also assumed the individual obligation here sought to be enforced. The express consideration of the engagements on the part of the parties of the second part was the sale and delivery to them by the parties of the first part of certain personal property, including all their interest in a certain soda fountain. In consideration of this the parties of the second part agreed to pay $900 in cash, “at the time of the delivery of this contract; said C. M. Wilcox, one of the parties aforesaid, further agrees to deed to said L. L. Wright, by a good and sufficient warranty deed, fifteen lots, [described;] and as further consideration for the agreements herein contained, said George D. Cottrel agrees to relinquish all his right, title, and interest in and to a certain tree claim now held by him, which tree claim is located and situated in Hansen ■county, Dakota territory, this last agreement not to be performed, however, until said L. L. Wright é Company shall have discharged all indebtedness now existing and owing on a certain soda fountain, [here referring to the soda fountain embraced in the sale;] said L. L. Wright & Company, on their part, agreeing to surrender the possession of the aforesaid property to said parties of the second part at -once; and they further agree that they will pay off and satisfy all indebtedness now owing on the aforesaid soda fountain within six
■ It will be noticed that the contract explicitly provides fbat the chattels sold should be delivered “at once,” and that the money consideration was to be paid “at the time of the delivery of this contract.” The contract being thus explicit as to the time of performance in those particulars, it is a significant fact that, unless the clause which we have put in italics is to be regarded as referring in part to the preceding agreement for the conveyance of this land, no time is designated therefor. The bare agreement to convey the land may well be deemed to contemplate performance at a future time, especially in view of the fact that the explicit provisions for immediate performance are expressly restricted to the delivering of the chattels sold and the payment of the money consideration. It is not probable that the parties, making other provisions thus explicit, intended that the time for the performance of the obligation to convey the land should be left wholly indefinite. These considerations, in connection with the further fact that the land to be conveyed was a part of the price for the chattels sold, including the soda fountain, which was incumbered with a debt which the sellers of it undertook to pay' off, lead to the conclusion that the condition recited in italics referred not alone to the immediately preceding provision as to the tree claim, but also to the agreement to deed the land here in question. In other words, an express condition of the obligation to convey the land was that the other party should first, and within the period of six months, pay off the indebtedness, which was a lien on the soda fountain. That condition precedent not having been performed, the defendant’s obligation to convey never became absolute. It is conceded by the ap
Judgment affirmed.
(Opinion published 54 N. W. Rep. 483.)