Shoemaker v. Cooke

WORKS, J.

Plaintiff and defendant Cooke, on January 10, 1919, entered into a written contract whereby the former agreed to sell and the latter agreed to buy a parcel of land. The purchase price was $15,000 and the sum of $500 was paid at the execution of the agreement. The balance was to be paid in installments of $1,500 on or before July 1, 1919, $1,000 on or before December 1, 1919, and certain later installments not necessary to be mentioned. The agreement provided that the vendee should be let into the immediate possession of the property; that time was of the essence of the contract; that the vendee’s failure to pay any installment when due should work a forfeiture of his right to the property and a forfeiture of all payments theretofore made; and that the vendee would, immediately upon the execution of the agreement make to the vendor a chattel mortgage upon all crops to be grown upon the property in 1919 and 1920 to secure the installments due during those years. The vendee entered into the possession of the property on the day of the execution of the agreement for purchase and sale.

The present action, commenced for the purpose of ejecting defendant Cooke from the land described in the agreement of sale, was instituted by means of an ordinary complaint in ejectment, no reference being made therein to the agreement. The answer of defendant Cooke denied the material allegations of the complaint. It also pleaded the agreement for sale and purchase and contained, among others, the following averments: That defendant was unable to pay in time the installment of $1,500 due on the property on July 1, 1919;

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that on or about August 1, 1919, he paid $800 on account of that installment and that it was then and there orally agreed between him and plaintiff that it would be inadvisable to put a summer crop on the land in controversy during 1919 and that defendant Cooke might have such an extension of time as would enable him thereafter to grow a crop of barley on the land and to harvest and sell the same in order to enable him to pay the balance of the installment of $1,500 and the installment of $1,000 due December 1, 1919; that on or about October 1, 1919, and in good season, defendant Cooke sowed barley on the land and thereafter caused to be grown a first-class crop of barley thereon; that at no time up to April 22, 1920, did plaintiff attempt to interfere with defendant Cooke’s possession of the land, or attempt to collect any moneys under the contract of sale . and purchase, or attempt to claim any forfeiture under the contract, but that up to that date he so conducted negotiations with defendant Cooke as to lead the latter to believe, and he did believe, that plaintiff intended to and would carry out the oral agreement for an extension of time, made on or about August 1, 1919; that on April 22, 1920, when the crop of barley on the land was ready to be harvested, plaintiff served on defendant Cooke a notice declaring a forfeiture of the contract because of his failure to pay the balance due of the installment of July 1, 1919, and the installment of December 1, 1919; and that the notice was the first intimation defendant Cooke ever had that plaintiff was dissatisfied with the arrangement made on or about August 1, 1919. Thereafter defendant Cooke filed a supplemental answer and plaintiff filed an amended complaint. It is not necessary to state the nature of these pleadings. Judgment went for plaintiff and defendant Cooke appeals.