McNulty v. New Richmond Land Co.

WASTE, P. J.

This is an appeal by the defendant from a judgment in favor of the plaintiff for the return of money paid under the terms of a contract for the purchase and sale of real property.

Adam Van Prooyen, a resident of Oregon, on the twenty-fifth day of November, 1912, entered into a contract with the New Richmond Land Company, the defendant, wherein he agreed to purchase, and the defendant to sell, two lots of land in the city of Richmond. The purchase price of the property, specified in the contract, was nine hundred dollars, the sum of fifty dollars to be paid on execution and delivery of the contract, the residue to be paid in monthly installments of ten dollars per month, commencing on December 25, 1912, with interest after two years. The buyer further agreed to pay all taxes and assessments levied on the property, and to discharge all liens accruing thereon. Failing to do so, the seller might pay and satisfy the same, the buyer to repay all such amounts, with interest, on demand.

After paying the initial amount, Van Prooyen, at various times, made eleven payments, aggregating three hundred dollars, on account of the principal of the contract, and two payments of interest. He was behind in his payments after the first five months. He made a last payment of ten dollars on the agreement on January 19, 1916, which left him seventy dollars in arrears, on account of principal, besides some interest. He died April 14th, following.

The contract provides: “In the event of the death of the buyer, this agreement, if then in force and unassigned, may, at the election of the legal representatives of the buyer, be continued in force and further payments made as herein

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provided, or the seller will, upon request, on surrender and cancellation of this agreement, provided that all installments and interest have been paid as herein provided, pay to the legal representative of the buyer an amount equal to the sum of all payments made by the buyer under this agreement, with interest thereon from the date of such payments at the rate of six per cent per annum.”

It is also expressly stipulated in the contract that time is, and shall be, of the essence of the agreement, and that the “due performance of all covenants and agreements on the part of the buyer is a condition precedent, whereon depends performance of the agreements on the part of the seller.”