Leaird v. . Smith

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 620 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 621 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 622 I can see no reason to doubt that the judgment below was authorized by the facts of the case. The plaintiff paid down $100. He was to pay $400 more on or before the 7th of January following. Not being ready then to pay, it was arranged, for his accommodation, that he should pay $100, and give his note for $300, at sixty days. This he did; and he paid the note at maturity. He had then paid $500, leaving $400, which he was to secure by bond and mortgage dated October 1, 1858, and payable in two years, or sooner. By the contract, as modified by taking the note and thus extending the time of performance, the deed was to be given when *Page 623 the note was paid. Except to pay the note, the plaintiff had nothing more to do until the deed was tendered, and then he was to give the bond and mortgage. It is true that Fiske told plaintiff, at the time he gave him the extension, that the business must be closed at the maturity of the note, and that no longer extension would be given. This simply required plaintiff to pay his note at maturity, to save his default, and then he could not be put in default until the deed was tendered, and he was thus required to give the bond and mortgage. As no place was mentioned in the contract for performance, and both parties resided in the State, the vendee could not put the vendor in default without seeking her and offering to perform on his part, and demanding the deed; and the vendor could not put the vendee in default without seeking him and tendering the deed and demanding the bond and mortgage. (Franchot v. Leach, 5 Cow., 506; Smith v. Smith, 2 Hill, 350; 2 Parsons on Cont., 160.) Here nothing was done by either party to put the other in default until 1862, when the plaintiff demanded the deed and offered to pay the balance of the purchase-money. The defendants then refused to perform, declared the contract forfeited, and claimed to keep both the land and the $500 paid. The proof tends to show, and the court found that the vendor could have found the plaintiff, by the exercise of reasonable diligence and good faith, and hence, the defendants cannot claim the position of a vendor who could not find the vendee for the purpose of making a tender of performance. Hence, the defendants had no right to declare the contract forfeited on account of any default on the part of the plaintiff, and they can have no defence to this action, based on such default. Courts of equity will sometimes refuse specific performance to a party who has been guilty of laches and great delay. But here the delay seems to have been, and was found by the court to have been by common consent, and it does not appear that the vendor was in any way damaged by the delay. Performance, when offered by the plaintiff in 1862, so far as appears *Page 624 in the case, would have been just as beneficial to her, as if it had been in March, 1859. Hence, I see no reason for disturbing the judgment below, and it must be affirmed with costs.