New Richmond Land Co. v. Ivanovich

KERRIGAN, J.

This is an appeal from a judgment in favor of plaintiff in an action brought to recover a balance alleged to be due under a contract by the terms of which the defendant agreed to purchase from the plaintiff certain lots of land in the city of Richmond, the purchase price to be paid in monthly installments. Defendant made a number of such payments, and then abandoned the contract,

[223]

whereupon the present action was brought to recover the balance of such installments.

In support of his appeal the defendant contends that, according to the terms of the contract entered into between the plaintiff and himself, in the event that he should fail to make the specified payments the only remedy of his vendor was the retention by him of the amount of money already paid on the purchase price, the respective rights and obligations of the parties being thereby terminated, which excluded any right on the part of the vendor to recover any unpaid balance. The provision of the contract upon which this claim of the appellant is predicated reads as follows:

“The due performance of all covenants and agreements on the part of the buyer is a condition precedent whereon depends the performance of the agreements on the part of the seller. In the event of a failure of the buyer to comply with the covenants and agreements, or any part thereof, on his part entered into, the seller shall be released from all obligations in law or equity to transfer and convey said property, or any part thereof, and the buyer shall forfeit all rights under this agreement, and all rights to any and all moneys which he shall theretofore have paid hereunder, as liquidated damages for such default, and not as a penalty.”

[1]

We are unable to concur in appellant’s construction of this provision of the contract. It is clearly one intended for the benefit of the vendor by which, at his option, in the event of the vendee’s default, he is relieved of his obligation to convey the lots sold and may regard as forfeited all payments theretofore made by the vendee, or, waiving the forfeiture, he may require the vendee to complete his contract. The vendee is given no option, but must abide by the election of the vendor.