Newell v. E. B. & A. L. Stone Co.

[386]

MELVIN, J.

Defendant appeals from a judgment upon a suit for money had and received.

The plaintiff, E. W. Newell, and the defendant corporation entered into a written contract on April 7, 1913, whereby the former agreed to purchase and the latter to sell certain real property for nine thousand two hundred dollars. Of this „ amount the sum of five hundred dollars was paid at the date of the agreement. The sum of one thousand five hundred dollars was due August 1, 1913, and the balance was to be paid in monthly installments of at least two hundred dollars. There was a provision for the monthly payment of interest; time was expressly made of the essence of the agreement ; and it was further provided that upon default in the payment of any of the installments the vendor, E. B.

&,

A. L. Stone Company, might at its option, without notice to the vendee, declare the entire principal and interest immediately due.

The vendee failed to pay the first installment of one thousand five hundred dollars, due August 1, 1913, but on December 13, 1913, a payment, on account, of something more than five hundred dollars was accepted, and thereafter other sums were paid at various times not specified in the contract until $2,694.83 had been received by the vendor.

, On April 28, 1915, the vendor (defendant in this action) served upon plaintiff a notice reciting the terms of the agreement. The notice contains the following statement by way of recital: “At all times the undersigned (E. B. & A. L. Stone Company) has stood ready, willing and able to comply with the terms of said contract, and that it is not the intention of the undersigned in any manner to rescind or abandon said contract, and nothing herein shall be construed to be a consent in any way to a rescission or abandonment of said contract.” Then follow recitals that time' is of the essence of the contract, and that default has been made by the vendee in consequence of which he has abandoned the contract, and the vendor notifies the vendee that in order to determine "that it is the latter’s “express intention as purchaser to abandon said contract,” a deed to the land is ready and is thereby tendered to the vendee upon payment of the balance of the purchase price, with interest as specified in the agreement, provided the entire balance should be paid immediately upon receipt of the notice. The closing words of the notice are as follows: “Unless said