Rhorer v. Bila

Paterson, J. — On the eighteenth day of February, 1887, the plaintiffs entered into an agreement with the defendant Bila, by the terms of which they agreed to sell and he agreed to buy the land in controversy for the sum of $3,375. One dollar of the purchase price was paid at the time of the execution of the agreement, and the balance ($3,374) was to be paid “as soon as said second party shall receive the second payment on a certain contract made between Frank P. Firey, Charles French, and George Bhorer, parties of the first part, and Augustin Bila, party of the second part.” On the 26th of May, 1887, the defendant Bila tendered to the plaintiffs the balance of the purchase price and demanded a deed. Defendants allege in their counterclaim that the plaintiff Firey, at the time of the tender, “in bad faith, refused and failed to accept said money, or any part thereof, or to execute or deliver said deed, or any deed of said land, either jointly with said plaintiff George Bhorer, or otherwise, and then and there, in bad faith, repudiated said contract, and denied that he was obligated in any manner thereby, .... and that the said George Bhorer, at the time of said tender and demand, failed to execute or deliver said deed, or any deed of said land, to said Bila, either jointly with said Firey, or otherwise, and continued so to fail to execute or deliver said deed until the month of June, 1888. This action was commenced September 13, 1888, to compel the defendants to pay plaintiffs the balance of the purchase price, and in case they fail to do so, for a decree canceling the agreement under which the defendants claim, and awarding the possession of the premises to plaintiffs. It is alleged in the counterclaim of defendants that the defendant Bila took possession of the premises under said contract, and placed valuable and permanent improvements thereon, aggregating in value not less than three hundred dollars; that thereafter the defendant Bila entered into a contract with the defendants Mills and Arnold, whereby he agreed [53]to sell all of the land and improvements to them for the sum of two thousand five hundred dollars, a portion of which price was paid; that on the twenty-sixth day of May, 1887, the defendants Mills and Arnold duly tentered to the plaintiffs the balance of the purchase-money, and demanded that said plaintiffs execute and deliver to them a good and sufficient deed; that the plaintiffs refused in like manner as they had refused to accept the tender made by the defendant Bila; that plaintiffs knew the defendants Mills and Arnold had purchased from Bila, and Bila, being present, consented that plaintiffs might convey to them, said Mills and Arnold; that after making said tender, and on the same day, May 26,1887, Bila conveyed to Mills and Arnold.