Stierle v. Rayner

Prentice, C. J. The instrument executed by the parties, and whose specific performance is sought, is *183 one commonly known as a bond for a deed. By its terms the plaintiff property owner agreed to convey, by a good and sufficient warranty deed containing the usual covenants, certain real estate immediately upon the receipt from the defendant purchaser of the stipulated purchase price, and the defendant agreed to pay that price. Performance was to be had on or before April 1st, 1916. These were mutual and dependent covenants demanding of each of the parties readiness and willingness to perform, and requiring, as a condition of judicial enforcement or redress for breach at the complaint of either, such readiness and willingness on his part, or a showing of sufficient excuse for their absence. Phillips v. Sturm, 91 Conn. 331, 335, 99 Atl. 689; Smith v. Lewis, 24 Conn. 624, 635. Readiness to perform on the plaintiff’s part meant readiness to convey an unincumbered title. Harris v. Weed, 89 Conn. 214, 225, 93 Atl. 232; Janulewycz v. Quagliano, 88 Conn. 60, 63, 89 Atl. 879. The property at the time the contract was entered into was covered by a mortgage of $3,500, and it remained so incumbered until after both April 1st and 10th had passed. In so far as the record discloses, no steps of any kind were taken to either procure or prepare for its release in anticipation of the stipulated conveyance. That was the condition of things when, on April 1st at one o’clock in the afternoon the plaintiff went to the meeting place which she had named in a letter to the defendant and at the hour so named. Subsequent preparation on that day to perform her undertaking, was confined to the drafting of a warranty deed to the defendant of the property subject to the $3,500 mortgage thereon. The defendant did not appear, nor was he heard from. If he had appeared and paid the amount he was called upon to pay, the plaintiff could not, as far as appears, have secured a removal of the in *184 cumbrance and given the free title which she was obligated to give. The indications are quite to the contrary, especially as the mortgage was held by a person described therein as of Danbury. The record thus fails to show that the plaintiff was in a position to perform her part of the mutual undertaking of the parties on April 1st when she was in duty bound to be ready to do so. The plaintiff’s letter of April 4th, giving the defendant an extension of time to April 10th, does not change the legal aspects of the situation. She could, indeed, waive her right to have performance by the defendant on April 1st, but she was powerless to extend the time within which she was bound to perform or to be ready and willing to perform. Furthermore, her preparations in anticipation of the second appointed meeting were no more adequate than they were for the first. The little that was done only emphasizes her unreadiness to give the title she had obligated herself to give. It follows that if the plaintiff is to prevail it must be by reason of her having a sufficient excuse for her conduct in making no provision for a release of the mortgage. Upon the trial she attempted to establish such excuse by evidence that the defendant, during the negotiations for the property, stated that he would take care of the mortgage if he purchased. The court, however, has refused to find, as the conflicting evidence justified him in doing, that such or a similar statement was made. The plaintiff is thus left to find her excuse in the defendant’s conduct in not communicating with her between the time of the execution of the agreement oh January 31st and April 1st, the limit of time fixed for the consummation of the transaction, and in absenting himself upon the latter day. Her efforts to get in touch with him on the telephone had failed, and her letter naming a place and time of *185 meeting sent on March 30th had elicited no reply. There was nothing else, save possibly the lapse of time, that could have made the plaintiff suspicious even that the defendant would not perform his obligations. If her suspicions were awakened by her inability to get into communication with him, her failure to hear from him, and the approach of the terminal date fixed for the payment and transfer of title, those suspicions should have aroused her to the necessity of putting herself in a position to make the conveyance she had agreed to make. They certainly did not justify her in acting as though the defendant had declared his abandonment of the agreement, indicated his purpose not to perform his part of it, or put himself in a position where he was incapable of performance. The defendant was under no obligation to keep in communication with her or to do anything until April 1st should arrive. He would have been wholly within his. rights had he waited until that day, and then proffered his promised payment. The plaintiff was bound to know this, and to act upon that knowledge. It was not until the plaintiff had waited at her appointed meeting place a reasonable time after one o’clock on April 1st that this situation became changed. Whatever excuse for further preparation the nonappearance of the defendant might then, have afforded, it was too late for it to serve her as a justification for the utter lack of earlier efforts on her part, not shown to have been unnecessary, that she might have the ability to give a clear title within the time appointed. In view of our conclusions above stated, the claim of the defendant that his contract to pay the stipulated purchase price was not one whose specific performance a court of equity will direct, but merely one embodying a forfeiture as the prescribed penalty in the event of his failure to perform, does not call for consideration. *186 For the avoidance of future misunderstanding, however, we ought, perhaps, to say that we are unable to so construe the instrument executed by the parties. Plainly the forfeiture provision was inserted to secure the performance of the contract by the defendant, and not to provide an alternative method of performance at his option. Goodale v. Hill, 42 Conn. 311, 317; Brown v. Norcross, 59 N. J. Eq. 427, 430, 45 Atl. 605; Koch v. Streuter, 218 Ill. 546, 552, 75 N. E. 1049; Dooley v. Watson, 67 Mass. (1 Gray) 414, 416. There is no error. In this opinion the other judges concurred.