Martin v. Morgan

Sharpstein, J. This is an action to compel specific performance of a unilateral contract, by which the respondent agreed to convey to appellant’s assignors a certain tract of land at any time -within sixty days from the date of said contract, upon the following express conditions: The said assignors to pay to respondent $150 of the purchase-money down on the delivery of said contract, and the balance within sixty days from the date thereof, otherwise said agreement to be null and void. One hundred and fifty dollars was paid on the delivery of the contract, but the balance of the purchase price, to wit, $4,850, was not paid or tendered within sixty days from the date of said contract. As an excuse for not paying said balance within said sixty days, the plaintiff in his complaint alleges that before the expiration of said sixty days from the date of said contract, the defendant, for a valuable consideration, extended the time of performance on the part [206]of his assignors to a reasonable time after the expiration of said sixty days. The court found that the defendant never extended the time for the performance of the conditions expressed in said agreement, or for the payment of any money stipulated to be paid as balance of the purchase price of said land, and rendered judgment in favor of the defendant. From that judgment, and the order overruling his motion for a new trial, this appeal is prosecuted by the plaintiff. We cannot say that the finding, of which we have above given the substance, was not justified by the evidence. We shall therefore consider the case as we would were there no claim made of an extension of the time specified in the written contract for the payment of the deferred payment. As before stated, plaintiff’s assignors agreed to pay defendant $150 of said purchase-money down upon the delivery of the agreement, and the balance within sixty days from the date thereof (August 31, 1887), otherwise the agreement to be null and void. Neither plaintiff nor his assignors performed, or offered to perform, the conditions expressed in said agreement within sixty days from the date thereof, and said agreement was not assigned to plaintiff within sixty days from the date thereof. The court finds that the plaintiff, after the assignment of said agreement to him, offered to pay and tendered a'll the balance of the purchase-money required to be paid by said agreement.

No other excuse or reason than the one above stated is alleged in the' complaint, by plaintiff or his assignors, for non-performance of the condition expressed in the contract. The plaintiff alleges that upon the delivery of said contract to his assignees they entered into the possession of said land, and expended the sum of $270 in valuable improvements. The court finds: “That said M. J. and P. B. Donahoo (plaintiff’s assignees) accepted said agreement and paid said sum of $150, and plowed said land, surveyed, mapped, and platted it into lots, but