Ross v. Gentry

KOFORD, P. J.

Defendant appeals from a decree quieting plaintiff’s title and foreclosing defendant’s interest as vendee in three pieces of real estate. It is appellant’s claim on this appeal that the provision in his contracts of purchase making time of the essence was waived by the conduct of plaintiff and that the said provision was not thereafter reinstated by a proper notice.

One contract covered a parcel known as lot number 9 and the other contract covered lots numbers 21 and 22'. Adding together the provisions of the two contracts, the agreements treated as one, provide as follows: Purchase price, $17,500; initial payment on date of contract, $7,150; second payment on or before June 23, 1923, $2,350; final payment January 15, 1924, $7,000, together with seven per cent interest on deferred payments, payable quarterly; vendee agreed to pay taxes and assessments; time was made of the essence of the contract; and for failure to comply with the terms of the contract vendee should forfeit all rights and vendor be released from all obligations. Appellant, the vendee in said contracts, made the initial payment of $7,150 by receipting for that amount due him from respondent as the final payment under a grading contract performed by appellant. Appellant made no other payments on the contract, whether principal, interest, or taxes. On July 21, 1923, respondent mailed to appellant a bill for the amount of principal and interest due and unpaid on the contracts amounting at that

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time to $3,712.25. On August 1, 1923, respondent wrote appellant a letter in which, he stated that he called attention to the fact that payments of the principal and interest were long past due and unless1 the same were taken care of immediately action would be taken to cancel the contract. On October 1, 1923, another bill for principal and interest was sent by respondent to appellant amounting at that time to $3,893.38. Later in the month of October respondent met appellant’s son, who was conceded to be the agent of his father, and again informed him that payments were long past due and if he wanted to protect his interests he ought “to get busy and pay them,” and that he ought not to expect anyone to carry them' forever. Gentry replied by exhibiting a large amount of due bills, saying that if he could get some of them paid he would pay up on the contract. Respondent replied that “he had better get busy and do it.” On November 6, 1923, respondent again sent a bill for the amount of principal and interest then due which was in the same form as previous bills except that it was headed “final three day notice.” These bills were supplemented with telephone calls requesting payments. The court found these facts and found that respondent at all times up to November 6 was willing to accept payment in despite of delay. This action was filed on November 23. In December, 1923, appellant tendered respondent $12,000 in full payment of the contracts, which tender was refused by respondent and the action carried forward.