Hinsch v. Mothorn

*542 BUDGE, J. Plaintiff and defendants entered into an agreement in writing for the purchase by defendants from plaintiff of a certain tract of land. The agreement contains a reference to a previous contract between defendants and plaintiff’s assignors for the sale of the same land, and after stating that an indebtedness of $4,500 remained thereon and that it was the “desire of the parties to reduce the said indebtedness to $4,000,” the agreement recites: “Now, therefore, it is understood and agreed, That the parties of the second part (defendants) shall pay Five Hundred ($500.00) Dollars to said Albert Hinsch (plaintiff) by giving him a mortgage on” certain lots “for Four Hundred ($400.00) Dollars, due three .... years after date, . . . . and One Hundred ($100.00) Dollars cash.....” Other portions of the agreement provided for the payment of the remaining $4,000 in future instalments. Defendants paid plaintiff $100 and executed and delivered their note and mortgage for $400 on other land, in compliance with the terms of the agreement as above quoted, and went into possession of the property agreed to be purchased. After default in the payment of certain of the instalments due on the $4,000, plaintiff terminated the contract and had the defendants ejected from the premises. Thereafter this action was commenced to foreclose the mortgage given by defendants to secure the payment of the $400. The cause was submitted on a stipulation of facts, and the trial court found in favor of defendants. Plaintiff appeals from the judgment. *543 A fundamental rule for the construction of contracts is to ascertain and give effect to the intention of the parties, as by them expressed. From a consideration of the language used in the agreement herein, and in accordance with its plain import, we think it clearly appears that the intention of the parties was to evidence a down payment of $500 on the contract by defendants’ execution of the mortgage for $400 and their giving plaintiff the $100 cash. The agreement recites that the $500 should be paid in that manner, and the stipulation of facts upon which the case was tried and is here submitted states that “at the time of the execution of said contract defendants paid plaintiff thereon the sum of $500” by giving him $100 in cash and a mortgage for $400. By this language and the expressed desire of the parties “to reduce the said indebtedness (of $4,500) to $4,000,” the note and mortgage stood alone, as if given and arising out of an entirely different transaction and representing an indebtedness independent of the contract for the purchase of the land. (Edwards v. Muri, 73 Mont. 339, 237 Pac. 209.) The contract being clear and unambiguous in its terms, it is the best evidence of the intention of the parties to it, and the legal effect of the agreement must be enforced according to the plain import of the language employed. The extension of time within which to pay the indebtedness represented by the note and mortgage was a sufficient consideration, as was also the prevention of appellant, during the life of the agreement, from making a sale of the land to anyone else. (C. S., sec. 5892; Portland Cattle Loan Co. v. Hansen Livestock & F. Co., 43 Ida. 343, 251 Pac. 1051; Mulcahy v. Gagliardo, 39 Cal. App. 458, 179 Pac. 445.) Time was of the essence of the contract, and there is no equitable showing by defendants to excuse their failure ‘to carry out its provisions with reference to payment of instalments, in which circumstances plaintiff would have the right to retain the payments made. (Hall v. Yaryan, 25 Ida. 470, 477, 138 Pac. 339.) *544 The judgment is reversed and the cause remanded, with directions to the trial court to enter judgment and decree of foreclosure. Costs awarded to appellant. Wm. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.