Boyd v. Warden

MELVIN, J.

Plaintiff sued to enforce specific performance of a contract for the conveyance of real property. Defendants appeal from a judgment against them on the ground that it is not supported by the evidence, and they appeal generally from an order denying their motion for a new trial.

The contract was signed by plaintiff and by Julia P. Warden. Defendant C. D. Warden is sued as the husband of the latter. By the terms of the instrument Julia P. Warden agreed, upon full payment of the purchase price of the property described therein, to convey it by a good and sufficient deed of grant, to L. Agnes Boyd, and to furnish a certificate by a certain abstract company showing the title to be vested in said Julia P. Warden. By the contract the vendor acknowledged the receipt of $285 and the vendee agreed to pay ten dollars on the first of each month beginning with November, 1907, until the full sum of $215 should be paid, with interest at the rate of six per cent per annum, payable quarterly. Time was made of the essence of the contract which provided that, in the event of failure by the vendee to comply with the terms thereof the vendor should be “released from all obligations in law and equity to convey said property” and the vendee should “forfeit all*right thereto and all money theretofore paid under the contract.” The evidence showed that various amounts of principal and interest were paid by L. Agnes Boyd, seldom upon the exact dates fixed by the contract, but never very long thereafter. These were accepted by the vendor and it was stipulated at the trial that on or about January 4, 1909, all payments due to February 1, 1909, had been made. The amount of the principal then unpaid

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was sixty dollars. The court found upon conflicting testimony that on or about January 8, 1909, plaintiff wrote defendant a letter requesting that she be permitted to pay the balance of the purchase price sixty dollars (no part of which .was then due under the terms of the contract), and that upon said payment she should receive a deed and certificate as provided by the terms of the agreement. There was a further finding that this offer was

bona fide;

that defendants gave no notice of their unwillingness to accept it; that not until some time in March, 1909, when plaintiff called at the office of C. P. Warden, the agent of Julia P. Warden, to enquire for her certificate and deed did she learn of the vendor’s unwillingness to accept her offer; that she then and there tendered the whole sum of sixty dollars which was refused; and that she also tendered thirty dollars, the payments for February, March, and April, 1909, which were also refused by the agent of the vendor. The court also found that by mutual agreement of the parties thereto payments under the contract were made at various places, sometimes to the agent of the vendor at the banking establishment in which plaintiff was employed, and that by reason thereof plaintiff relied on the said agent calling at the bank to get the balance due for the property and to deliver the certificate of title and the deed; that plaintiff was at all times ready, able, and willing to make good her offer; and that defendants had acted in bad faith and had practiced fraud and deceit upon plaintiff in seeking to gain advantage under the strict terms of the contract. Among the conclusions of law was one to the effect that defendants by their acts and conduct were estopped from forfeiting and canceling the contract.