Vorwerk v. Nolte

SHARPSTEIN, J. Action to recover $3,750 and interest at the rate of three per cent per month from June 24, 1887. The action is upon a contract in writing whereby the plaintiff agreed to pay, and did pay, to the defendant $3,750 for a certain lot of land which the defendant agreed to convey to plaintiff one year after the date of said contract, which was dated June 24, 1887. And on the same day, and before plaintiff paid to defendant said $3,750, defendant made and executed the following agreement, to wit:

“This agreement is to certify that I, the undersigned, promise to execute to a lot on First street, to which I executed to-day an agreement, and which has been paid in full by Mr. John Vorwerk, and, in case of failure of the undersigned to deliver and execute a deed after one year from date hereof, bind myself to refund the purchase price, three thousand seven hundred and fifty dollars ($3,750) with interest at the rate of three per cent per month.

“C. A. NOLTE.”

[286]That this and the preceding agreement were parts of the same contract is found by the court, and conceded by counsel. And, being so conceded, the obvious meaning of the contract is that the defendant, in consideration of $3,750, to him paid by the plaintiff, would, one year after the date of said contract, execute and deliver to the plaintiff a perfect deed of the lot described in said contract; and in case of a failure of defendant to execute and deliver such a deed after one year from the date of said contract, he would refund the purchase price, $3,750, with interest at the rate of three per cent a month. This construction of the agreement is not, so far as we are advised, controverted. The date of the contract, as before stated, is June 24, 1887. A deed was not tendered until July 2, 1888, which was more than one year from and after the date of said contract. But the court finds as a conclusion of law “that at the time this action was commenced, February 11, 1889,. the defendant was not in default, within the terms of either of said agreements set forth in findings Nos. 10 and 12.” That conclusion is probably based upon the following finding of fact: “That on the second day of July, 1888, the defendant made and duly signed and acknowledged before a notary public so as to entitle it to be placed of record a good and sufficient deed of grant, bargain, and sale conveying to the said plaintiff the premises described in said contract between the parties hereinbefore described in finding No. 10, free of all encumbrances ; and on the said second day of July, 1888, and before the commencement of this action, the defendant tendered the same to the plaintiff but plaintiff refused to receive or accept the same, and the defendant brought the said deed into court, and renewed his tender and offer therein, and did proffer in his pleadings, and at the trial of this action, to deliver the same to the plaintiff in pursuance of his aforesaid contract to do the same, and the same is now in the custody of the clerk of this court, subject to the order of the plaintiff. ’ ’ There is no finding that a deed was tendered at an earlier date than July 2, 1888. From which we infer that the court regarded the tender of a deed at that time a substantial compliance with the agreement of defendant to execute and deliver to the plaintiff a deed after one year from the date of said agreement, which was June 24, 1887.