Smith v. Mohn
Before: Belcher
Synopsis
Vendor and Purchaser—• Contract of Sale — Execution — Findings— Exhibit — Surplusage. — If a contract for the purchase of land is set out in hwe verba in the complaint, a finding that the vendor entered into an agreement in writing with the vendee for the sale of the land upon the terms and conditions set forth in the complaint is a sufficient finding that the vendee executed the contract; and a further reference in the findings to an exhibit, which is not made a part of the pleadings, findings, or record, may be rejected as surplusage.
Id.—Findings — Amount Due upon Contract. — A finding of the amount due the vendor upon the contract is sufficient, without stating that it was due from the vendee, where the vendor and vendee are the only parties who signed the contract.
Id. — Fraud — Purchase by Third Party — Affirmative Defense — Sufficiency of Findings.—Affirmative matter, alleged in the answer, that the vendee’s signature to the contract was obtained by fraud, and that a third party was the purchaser and the real party in interest, and was so accepted and regarded by the vendor, is sufficiently met and cov- . ered by a finding that the signature was not obtained by fraud, and that the vendor did not accept and receive the contract with knowledge and notice that the third party was the real purchaser.
Id. — Pleading — Performance of Conditions Precedent.—An averment that the vendor duly performed all of the conditions of the contract to be performed by him up to the time of bringing suit is a sufficient averment of the performance of conditions precedent.
Id. ■—Time of Essence of Contract — Default of Vendee — Action for Purohase-money. — Under a contract for the sale of land, providing that time shall he of its essence and that a failure on the part of the vendee to comply with its terms shall forfeit all his rights thereunder, the failure of the vendee to make the payments provided for does not make the contract void as to the vendor, and he may, upon default of the vendee, enforce the contract, and sue for the amount of purchase-money due.
Findings — Ultimate Facts.—Findings should respond to and cover all material issues raised by the pleadings, but they should be statements only of ultimate and not of probative facts, and will be held sufficient where all the material ultimate facts are passed upon.
Belcher, C. This action was commenced on the nineteenth day of April, 1889, to recover the sum of one thousand dollars, with' interest thereon, alleged to be due [493]from defendant to plaintiff under a contract for the sale of land.
It is alleged in the complaint that on the sixth day of September, 1887, the plaintiff and defendant entered into a written agreement, a copy of which is set out in full, whereby the plaintiff, as party of the first part, agreed to sell and convey to the defendant, as party of the second part, and the latter to buy, a certain described parcel of land for the sum of two thousand two hundred dollars, to be paid as follows: Seven hundred dollars cash, the receipt of which was acknowledged, five hundred dollars on January 1, 1888, and the balance of one thousand dollars on May 1,1888, with interest at eight per cent.
It is further alleged that the first two payments were made, and that the sum of one thousand dollars, with interest, “became due, according to the terms of said contract, on the first day of May, 1888, no part of which has been paid by defendant, although often requested so to do; that plaintiff has duly ¡oerformed all of the conditions of said contract to be performed by him to this time, and has been constantly, and now is, ready and willing, and prior to the institution of the suit offered, to execute and deliver to defendant a deed of said premises, together with a certificate of title, upon compliance by defendant with the terms of said contract as therein set forth, but defendant said he would not accept a deed, and refused to pay said money.”
The agreement set out contains this provision: “Itis further agreed that time is of the essence of this contract; and in the event of a failure to comply with the terms hereof by said party of the second part, the said party of the first part shall be released from all obligations in law or equity to convey said property, and said party of the second part shall forfeit all right thereto, and to moneys theretofore paid under this contract, and all his interest in or to said moneys or said property [494]shall thereupon immediately cease as fully as if said moneys had never been paid or this agreement entered into. And the said party of the first part, on receiving such payment at the time and in the manner above mentioned, agrees to execute and deliver to the said party of the second part, or to his assigns, a good and sufficient deed, with certificate of title.”
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