McDonald v. Rimes

Atkinson, J. 1. The ruling announced in the first headnote does not require elaboration. 2. The demurrer admits the truth of the allegations. So considered, the terms of sale were stated, which included, among others, the right of the vendor to remain in possession free of rent for a specified time, and thereafter at stipulated rent, until the vendees should require possession. The contract was entire, and contemplated realty and personalty alike, for which one gross amount was to be paid. The payments were to be in installments, due at different times. The vendor executed and delivered to the vendees a bill of sale conveying the personalty, and a warranty deed conveying the realty. The contract was, therefore, executed by the vendor. He had done all that he promised to do, and it only remained for the vendees to carry out their promise to pay the purchase-price. They refused to do so, even though the deeds had been delivered. One remedy of the vendor was to sue on contract for the stipulated purchase-price. Having adopted that remedy, thereby electing to affirm rather than repudiate the contract, and sue for the purchase-money which, by the terms of the contract, had' been promised him, he must abide all the terms of the contract; for he can not take both under and against it. One of the provisions was that the vendees should have a stipulated time within which to meet the several installments in which the purchase-money was payable. One of these (the cash installment) was due, and the action was maintainable for that, though not for the deferred payments which were not due. The stipulation made for the hastening of the maturity of the entire debt is to be construed as referring to failure to meet the deferred payments, and not to the cash payment. Had the action been fox damages from breach of the contract, in which other things might be considered in estimating the damages, it would be otherwise. The plaintiff having set forth a cause of [734] action for some part of the amount sued for, it was error on general demurrer to dismiss the petition. Judgment reversed. All the Justices concur (Fish, O. J., and Beck, J., specially), except Hill, J., not presiding.