Robitshek Investment Co. v. Wick

Lees, C. This is an appeal from a judgment in an unlawful detainer action. In July, 1925, tbe Lincoln Securities Company entered into a contract for tbe sale to appellant of an apartment bouse in the city of Minneapolis and of tbe storm sash, screens, awnings, window shades, wall beds, refrigerators, gas and electric fixtures, ball and stair carpets, and beating and janitor supplies, used in tbe building. Tbe purchase price of $128,000 was payable in instalments of $1,250 a month up to August, 1929, when tbe balance then due became payable. Tbe contract contained a clause reading thus: “Should default be made in tbe payment of any or either of said several sums of money, * * * said party of tbe first part may, at its option, by written notice in tbe manner provided by law, declare this contract cancelled and terminated, * * * said notice [to] be in accordance with tbe statute in such case made and provided.” Tbe appellant made default in tbe payment of taxes and of two of tbe monthly instalments. Tbe Lincoln Securities Company bad transferred tbe property to tbe respondent, which gave tbe statutory notice of cancelation. Tbe appellant failed to remove tbe default, and this action was brought to recover possession. Appellant’s first point is that, since tbe contract included personal as well as real property and did not separately specify tbe purchase price of each, G. S. 1923, § 9576, as amended by L. 1925, p. 154, c. 163, is inapplicable and tbe notice was without force or effect. Tbe subject matter of tbe statute is tbe notice required to terminate contracts for tbe sale of land. Tbe statute makes no reference to contracts for tbe sale of personal property. For tbe purpose of this discussion, we will assume that tbe statute is limited in its application to contracts for the sale of land only. Tbe statu *129 tory method of canceling such a contract is not exclusive. The rights of the vendee may always he terminated by action, State Bank of Milan v. Sylte, 162 Minn. 72, 202 N. W. 70, and it is argued that only by bringing a suit for that purpose could there be an extinguishment of the appellant’s contract rights. Before the statute was enacted, it was held that, if the vendor was entitled to possession, he could bring an action in ejectment immediately upon the vendee’s default, and that ordinarily, where the time of performance was made the essence of a contract, a failure by the vendee to perform within the allotted time operated, in the absence of a statute to the contrary, as a forfeiture of the vendee’s rights, Williams v. Murphy, 21 Minn. 534; but that where time was not of the essence of the contract, the vendor could not arbitrarily cut off the rights of the vendee, Tingue v. Patch, 93 Minn. 437, 101 N. W. 792. It was also held that where time is of the essence of the contract, the agreement of the parties will be enforced in equity and at law, Grant v. Munch, 54 Minn. Ill, 55 N. W. 902; and that, in the absence of a statute to the contrary, the vendee’s failure to perform within the prescribed time operates as a forfeiture of all his rights, subject to the qualification that, where the vendor permits the vendee to continue in possession and make payments after the lapse of such time, he must give notice that the vendee’s rights will be forfeited unless he performs within a reasonable time, Tingue v. Patch, supra; Mo v. Bettner, 68 Minn. 179, 70 N. W. 1076. The conclusion follows that, if the contract here in question is not within the statute, the rights of the appellant could be cut off by any method which was permissible prior to the enactment of the statute, and that, if the contract is within the statute, the appellant’s rights were cut off by the notice of cancelation served upon her. We think the terms of G. S. 1923, § 9576, are incorporated in the contract by virtue of the language of the above quoted provision for notice to terminate the vendee’s rights. In the absence of a statute, the parties may provide, in a land contract, for the kind of notice of cancelation required to terminate it. True v. N. P. Ry. Co. 126 Minn. 72, 147 N. W. 948; Schwab v. Baremore, 95 Minn. 295, 104 N. W. 10. *130 It follows that the service of the notice terminated appellant’s rights unless she performed within the time specified therein, and that 30 days was a reasonable time in which to perform. We cannot sustain appellant’s contention that only by bringing an action could the contract be canceled and the appellant’s rights terminated. If the statute is applicable, the notice served terminated her rights. If it is inapplicable, the notice nevertheless terminated the contract, because it was such notice as the parties had agreed upon. In either case, appellant’s rights came to an end when she failed to remove her default within the time specified in the notice. It is urged that the notice is defective because it is signed: “Robitshek Investment Company By Amos S. Deinard, Attorney-in-fact.” More specifically, the contention is that it does not appear that Mr. Deinard was in fact the attorney for the Robitshek Investment Company. This point is disposed of by First Nat. Bank v. Coon, 143 Minn. 262, 173 N. W. 431, and Clark v. Dye, 158 Minn. 217, 197 N. W. 209. We see no reason for drawing a distinction between a notice to which the vendor’s signature is affixed by an attorney in fact and one where it is affixed by an attorney at law. Judgment affirmed.