Bradford v. Parkhurst

Temple, C. — This appeal is from a judgment and an order refusing a new trial.

The action is for money had and received for plain[104]tiff’s use, and for interest on “divers sums forborne by-plaintiff to defendant at his request.”

The statement shows that between January 9 and March 31, 1888, defendant executed to plaintiff and his assignors seven contracts for as many distinct parcels of land.

The contracts are alike, and are in the form of receipts for specified sums of money, part of the purchase price, followed by a recital as follows: “Leaving a balance .... to be paid on said purchase, which, by the terms of this sale, is to be paid in three equal payments, with interest.at the rate of ten per cent per annum till paid, in like gold coin, within six, twelve, and eighteen months from date hereof. If paid as above stated, with all taxes, assessments, and charges of every nature that are or may be levied thereupon before the final payment and costs of conveyance, the above-named W. Bradford will be entitled to a deed for the above-described lot; otherwise this agreement becomes null and void, and the amounts now paid, together with all improvements on said land made, shall be forfeited. .... If forfeited, the said W. Bradford shall thereafter be, and he hereby consents to be, tenant of D. W. Parkhurst, liable to be dispossessed upon three days’ notice,” etc.

The contracts are signed only by the vendor.

It was not shown, or attempted to be shown, that defendant had failed or refused to perform any part of liis contract. On the other hand, it appears from the evidence that plaintiff, after having made the first payment, on being asked whether he intended to perform, said that he would make no more payments, and “ I will see my attorney, and would like to see you get it.”

The evidence also shows that defendant tendered to plaintiff a deed in pursuance of the contract, but the tender was after the time limited for performance, and appellant contends that time being of the essence of the contract, the tender was not effectual, and that defendant was in default; in short, that there had been a mu[105]