Dessert v. Scott

Cole, C. J. It is evident that the written contract fixes or determines the rights and liabilities of the parties to it. [393] The only clause as to which there is any serious difference of opinion, and which the court is called upon to interpret, is the following: “This sale subject to an amount due the state of $37 for each forty-acre tract; that amount due on the lands to the state to be deducted from the purchase money; and if any interest due the state for tlie year 1878, or anything later, parties of the first part to pay the same to January 1,1879, or up to the time of dosing this sale.” It appears that the subject matter of this contract of sale was some saw-logs in Marathon county and a quantity of agricultural college lands. The title .to these lands was in the state, but the usual certificates of sale had been given by the school-land commissioners to purchasers in 1869. On the 25th of September, 1878, the defendants agreed to sell these logs and lands to the plaintiff. There is no controversy about the logs. The plaintiff agreed to pay for the lands at the rate or price of one dollar per thousand feet for all the merchantable pine standing or uncut upon them. The contract declares the meaning of the word “ merchantable” as used therein. Manifestly, the parties intended that the logs should be scaled, and the timber standing on the lands should be estimated when the contract of sale was to be consummated according to its terms. No time, however, was specified within which these' things were to be done. But the court found that the timber on the lands was estimated some time in December, 1878, and all the parties notified thereof. For a reason which is fully explained in the testimony, and which seems to have been perfectly .understood and agreed upon by the parties, the lands were suffered to be sold by the state on the 12th day of December, 1878, for unpaid interest and charges. They were bid in by Mr. Seott, who subsequently obtained the usual certificates of sale, he having .paid all charges and the interest up to January 1, 1879, but leaving unpaid $37 purchase money due the state on each [394] forty-acre tract. By the law, as it then and now stands, interest on the unpaid purchase money was payable in advance on the 1st day of January of each year, or on or before the 31st of May thereafter. Sec. 209, B. S. The parties met on the 7th of April, 1879, and completed the sale. The plaintiff gave his notes as agreed upon in the contract, and the new school-land certificates were assigned to him. But it appears the lands were forfeited and sold by the state in December, 1879, for the failure to pay the interest for that year. This statement is sufficient to enable us to understand the contention of the respective parties. ■ Now the plaintiff claims that the clause of the contract above quoted imposed upon the defendants the obligation to pay the interest on the certificates assigned for the year 1879, and as the lands were forfeited in consequence of the failure to pay such interest the loss falls upon them. On the other hand, it is insisted that the engagement was in the alternative either to pay the interest up to January 1,1879, at most, or only to an earlier date, in the event the sale should be perfected and “ closed” before that time. It is said the words “ to January 1, 1879,” are words of limitation, to fix a time beyond which the defendants were not bound to pay any interest, and were inserted for their protection, so as to secure the completion of the sale before that date. It is a well-settled principle of law, when the obligation is in the alternative, as to do a thing on one day or another, or in one way or another, that the right of election is with the promisor, if there is nothing in the contract to control that presumption. 2 Parsons on Con., 656; Addison on Con., § 309; Smith v. Sanborn, 11 Johns., 59. It is apparent from the face of the contract that the parties expected when it was entered into that the sale would be “ closed ” or perfected some time prior to January, 1879. This is evident from the last clause. The principal on the old certificates became due at that time. And this clause provides [395] that if the amount due the state upon the lands has to be paid at that time, the parties should pay the amount equally, and the one-half which should be thus paid by the defendants was to be repaid to them -by the plaintiff on the same terms as were stipulated in the contract for the payment of the residue of the purchase price coming to them. This plainly shows that the parties expected the sale would be completed before January, 18T9, and hence the force of the limitation. It was certainly no fault of the defendants that the completion of the sale was delayed beyond that time. As soon as Mr. Soott bid off the lands and obtained the new certificates, he notified the plaintiff of the fact and was in a position to perform on his part. The timber had been estimated and the parties notified of the fact. It is perfectly apparent that the defendants might then, on a tender of the certificates duly assigned, have maintained an action against the plaintiff for a specific performance of the contract. ITad such an action been brought in December it would have been no defense that the interest on the certificates for the year 1879 had not been paid. In the view we have taken of the contract it is unnecessary to notice the other points which were so ably discussed by counsel. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the complaint.