Covington v. Clark

VAN DYKE, P. J.

This is an appeal from a judgment following submission upon a stipulation as to facts and issues.

The stipulated facts may be sufficiently summarized as follows: Plaintiffs Edward and Pearl Covington agreed to sell to Marvin D. and Myrtle M. Clark certain real and personal property by a conditional contract of sale whereunder the Clarks went into possession of the property. Payments were maintained in accordance with the contract. The parties agreed that if the Clarks defaulted in the payment of money or the performance of any other promise made by them the Covingtons could be released from the obligation to convey, in which case the interest of the Clarks would terminate, and the Covingtons could repossess the property and retain all payments made as liquidated damages for default. The Covingtons also, in case of default, would have any rights or remedies given by law though not specially mentioned in the contract. If the Clarks defaulted and the Covingtons found it necessary to recover possession of the premises by suit, the Clarks were obligated to pay to them reasonable attorney fees for the prosecution of the action. Neither the agreement nor any interest therein were assignable by the Clarks unless the Covingtons consented in writing. Prior to the controversy herein the Covingtons gave the Clarks a bill of sale of the personal property involved. Some four and one-half years after the parties made the agreement, the Clarks executed with the Postnikoffs a conditional contract to sell the same realty involved in the first contract and delivered possession. They gave no notice of this transaction to the Covingtons. The

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second contract was dated August 24, 1956. The September payment on the Covington-Clark contract was made and accepted, but at that time the Covingtons had no knowledge of the Clark-Postnikoff contract. Before the October first payment fell due, the Clarks tendered to the Covingtons the October monthly payment and the Covingtons refused to accept. On September 28 the Clarks wrote the Covingtons, again tendered the October payment in the form of a cashier’s cheek, but on October 3 the Covingtons wrote the Clarks, returning the check and made a demand for immediate possession of the property. On October 17 they began this action. On October 23 the Clarks deposited a certified check in the sum of $11,421.05 with a title company with instructions to pay the money to the Covingtons upon delivery by them for the Clarks of a grant deed, and a policy of title insurance in the sum of $22,500, being the amount of title insurance which the Covingtons had in their contract with the Clarks agreed to furnish upon transfer of title. The Covingtons were given notice of the deposit. The Clarks asserted that the deposited sum was the full amount due, to and including October 23, 1956, the date on which they had mailed their notice of tender, but admittedly the total sum did not include attorney fees for the action which was then pending. The Covingtons claimed the deposited sum was $6.57 less than the true amount due and that the deposit should have included attorney fees.