Souter v. Witt

Wood, J., (after stating the facts.) The written contract is plain. There is a clause expressly making “time of the essence of the contract,” and other clauses which clearly show that the parties intended at the time of the execution of the contract that the payments should be made at the times stipulated. From the language of various provisions of the contract the conclusion is irresistible that payment at the time specified was made a condition precedent to the right of appellant to acquire the title, and to obtain a deed to the land. This being true,, the case, so far as the written contract is concerned, comes well within the rule announced by Mr. Pomeroy and quoted by Judge Riddick in Carpenter v. Thornburn, 76 Ark. 578, as follows: “It is well settled that when the parties have so stipulated as to make the time of payment of the essence of the contract, within the view of equity as well as of the law, a court of equity can not relieve a vendee who has made default. With respect to this rule there is no doubt the only difficulty in determining when time has thus been made essential. It is also equally certain that, when the contract is made to depend on a condition precedent — in other words, when no right Shall vest until certain acts have been done, as, for example, until the vendee has paid certain sums at certain specified times — then also a court of equity will not relieve the vendee against the forfeiture incurred by a breach of such condition precedent.” 1 Pom. Eq., § 455; see also Ish v. Morgan, 48 Ark. 413; Cheney v. Libby, 134 U. S. 68; 4 Pomeroy, § 1408. But it does not follow that, because there has been a forfeiture under the strict letter of the contract, the vendor is entitled to insist upon it. That depends upon his conduct with reference to it. The Supreme Court of the United States in Cheney v. Libby, supra, after announcing the doctrine we have mentioned as to the proper construction of a contract where timé is essential, says: “The discretion which a court of equity has to grant or refuse' a specific performance, and which is always exercised with reference to the circumstances of the particular case before it, may, and of necessity must be controlled by the conduct of the party who bases his refusal to perform the contract upon the failure of the other party to strictly comply with its conditions.” Some of our. own cases to the same effect are Little Rock Granite Co. v. Shall, 59 Ark. 405; Morris v. Green, 75 Ark. 410; Bowman v. Banks, 83 Ark. 524. The real difficulty in this case has been to determine, on the' issue of fact, as to whether appellee’s conduct was a waiver of the forfeiture. Appellant and appellee are the witnesses pro and con respectively on this issue, and as is Said by Chief Justice Hill in Bowman v. Banks, supra: “Where there is a conflict, it is a mere difference between two witnesses detailing the same transaction, and the court accepts in such conflict the testimony accredited by the chancellor, nothing else appearing to determine the preponderance.” There was a clear waiver of any forfeiture on account of a failure to pay the first note when it became due. The testimony of appellee himself shows that. For-among other things 'he says: “I always told Souter at t'he time of making the contract, and after that, that if he would pay the notes by the time the last note was due it would be all right.” The appellant, before the first note was due, went to the appellee and told him that he (appellant) was making improvements, and that he would not be able to make all of the first payment when due, and that thereupon appellee gave “an affirmative grunt.” He says that he had been doing business with appellee before this time, and had owed him' money, but that appellee had never insisted on payment when the money was due, and was always willing to extend the time. Therefore appellant concluded that appellee was willing for him to have additional time on the second note as well as the first. But appellant did not ask appellee about payment on the second note until after same was due. Then he found that appellee was unwilling to extend the time claiming that appellant was too late, etc. Appellant testified that he understood from what appellee said and did that he was willing to extend the time of payment after the last note became due. But appellant fails to point out any conduct on the part of appellee before or after the time for the payment of the last note that would warrant appellant in believing that appellee would extend the time for payment beyond the date when the last note was due. Appellee testified that his indulgence to appellant was with reference to the first payment. True, he says that “may be he would have taken the money and given appellant a deed had he come up with the money in full before January I, 1907,” the day the contract was marked cancelled. But appellee says it was a bona fide sale, and “the forfeiture clause was put in the contract to show that he was to pay me so much money before he could get t'he land according to the stipulations of the contract.” The fact that appellee never asked appellant to pay any rent on the place, and that appellee retained the notes after the expiration of t'he time of payment, can not be taken as a waiver of the forfeiture. Appellee says that he told appellant in January, 1907, when he spoke about the matter, that he, appellant, could get the contract and notes at any time. He says that he did not intend to charge him rent, and there was nothing said about it; that what he did since December 1, 1906, the time for the final payment, he would have done outside of the contract and not under it.” The faot that appellee did not charge appellant rent may be regarded as an act of kindness to appellant rather than an acknowledgment on -the part of appellee that he did not own the land. The testimony is set out in full, and it fully sustains the finding of the chancellor. His decree is therefore affirmed.