Roeder v. Robson

Wheeler, J. If the plaintiff chose to consider the contract rescinded by reason of the default of the defendant in making prompt payment, he should not have brought suit upon the note. That was to affirm the contract as being in full force, and to ask a specific performance of it. The amended petition, seeking to recover back the land, appears to have been an afterthought, upon discovering the peculiar phraseology of the bond for title ; which it seems, from the plaintiff’s last amended petition, was not known to him until it was set out in the defendant’s answer. Had the plaintiff elected to proceed, in the first place, for the land, on the ground of the default in making payment, or had the defendant persisted in resisting the payment of the residue of the purchase money at all events, the claim of the former to recover back the land would be entitled to a more favorable consideration. But the plaintiff did not discontinue his suit for the purchase money, although he sought to recover back the land; when called on by the last amended answer, to make his election, after the defendant had withdrawn his defences in bar of the action, he virtually refused to do so. If he chose to disaffirm the contract, he should have proceeded distinctly upon that ground. If the receipt of purchase money, after default, will waive the default, the bringing of a suit for it, which has the same effect as a bill in equity for specific performance of the contract, should have, it would seem, the same effect; unless the defendant should then resist its payment without any good reason, or equitable excuse. The plaintiff might have brought suit for the recovery of the land, and have framed his petition with an alternative prayer for the recovery of the money in case the recovery of the land should be denied him. But having proceeded in the first place for the specific performance of the contract, and thus determined his election, he could not afterwards, [766] and after the defendant had withdrawn all his defences in bar of the action, insist upon maintaining his suit for specific performance of the contract, and at the same time treat it as null, and insist upon the restoration of the land. He ought to have made his election of remedies. If the default of the defendant was culpable, the pretensions of the plaintiff were not such as very strongly to commend themselves to the favorable consideration of a Court of conscience. He contended that the payment of the money was a condition precedent to the making of title, and that by the terms and intention of the contract, if the last payment was not made on the very day it became due, his obligation to make title was null; upon his construction of the contract, he would claim a restoration of the land and a forfeiture by the defendant of the purchase money paid, if the residue was not paid punctually at maturity, whether he was then able or willing to make title or not, and although the defendant might afterwards tender payment and ask a completion of the contract. We do not so understand the contract. We think it sufficiently manifest, from the whole instrument, that the intention was to bind the parties to the mutual performance of their undertakings at the same time; and consequently, that the covenants were concurrent and dependent, obliging the one party to perform or show a readiness and willingness to perform before he could exact performance of the other. It is true the defendant was in default, and he sought further to delay payment by asking that proceedings be stayed until the determination of the suit by which the plaintiff’s title was litigated in another Court. That relief he did not, perhaps, show himself entitled to, for the reason that it was not competent, unless upon the ground of fraud, for him to prove by parol the alleged promise, in effect, not to exact payment until that suit was determined., That, it may be said, would have been to vary the terms of the written contract, by parol evidence. But it does not appear that the defendant intended to repudiate the contract, and to refuse performance of it. ¡Nor does the plaintiff rest his right to consider the contract as at an end, on the ground that time was of the essence of the contract, or that he had sustained any injury by the default in making payment, which might not be compensated by payment of the principal and interest due; but he placed it upon the ground that the contract, by its terms, was absolutely null, when the defendant failed to pay the note at maturity. We do not so understand it. The making of title by the plaintiff was an act [767] to be done cotemporaneously with the payment of the money. And we are of opinion that when the defendant had withdrawn his defences in bar, and his defence in suspension of the action was denied him by the judgment of the Court, the plaintiff was at least bound to make his election of remedies, and that having declined to do so the Court very properly rendered judgment for the purchase money. We do not mean to be understood as saying that if he had then made his election to recover the land, he would have been entitled to his judgment as asked, under the circumstances of this case. We are not of that opinion. But it does not become necessary to go into the examination of that question. The case having been submitted to the decision of the Court, waiving a jury, it does not become necessary to notice the ruling of the Court excluding the depositions offered in evidence by the plaintiff, further than to say that, if admitted, they would not have materially affected the merits of the case, or have warranted a different judgment. The manifest justice of the case has been attained; and there is nothing in the rulings of the Court or the judgment of which the plaintiff in error has cause to complain. The judgment is affirmed. Judgment affirmed.