Bennett v. Hyde

Temple, C. Plaintiff appeals from the judgment, and an order refusing a new trial.

The action is to enforce specific performance of a written contract for the sale of lands.

There was no error in striking out portions of the complaint, if the court correctly determined, as we think it did, that time was of the essence of the contract sued on.

Furthermore, that ruling is not specified as an error upon -which the plaintiff would rely on his motion for a new trial.

There is abundant evidence to sustain all the findings excepted to.

The only real question in the case is, whether time was of the essence of the contract, and to consider this question it is not necessary to determine whether the specifications as to the alleged insufficiency of the evidence comply with the requirements of the code or not.

All the necessary facts appear in the pleadings and findings.

The contract was made July 25, 1885. By its terms, the purchaser was to pay $256 upon its execution, and the same sum on the twenty-fifth day of July in each year of the three succeeding years, and also all taxes. The residue, $3,200, was to be paid July 25,1889, making $4,224 in all.

The purchaser was let into immediate possession, and has paid all installments due and all taxes, but has not [133]made the last payment of three thousand two hundred dollars.

July 16,1889, the last payment not having been made, defendant voluntarily and without consideration extended the time until August 5th of the same year.

In the contract, the purchasers agreed to make the payments as specified, and further stipulated: “ In the event the parties of the second part fail to comply with any one of the agreements herein specified, and at the time specified, then this contract shall immediately become void, and the party of the first part shall be released from all obligation at law or in equity to convey said land; and the parties of the second part agree that they will, upon failure by them to comply with any one of their agreements herein specified at the time specified, forfeit all claim to said land, and will deliver up said land peaceably, and without process of law, to the party of the first part. The party of the first part, upon receiving the several payments herein specified at the time specified, agrees,” etc.