Morris v. Hoyt

Christiancy J.: A preliminary objection is urged by the appellants, that the bill is multifarious, inasmuch as it prays relief against Jesse Hoyt and Curtis Emerson, who are not parties to the contract. We see no ground for this objection. There is. but one subject matter; and as by the bill it appears that Jesse Hoyt and Emerson had or claimed- to have an interest in the property, obtained from Alfred M. Hoyt, the contractor, after the date of the contract, and with notice of complainant’s rights, they would seem, upon the case made by the bill, to be necessary parties. The merits of the case depend mainly upon the facts admitted by the pleadings, no proofs having been taken except upon the reference after the preliminary decree. The answer, being without oath, is but a pleading, and of no effect as mere evidence. So far as it admits the case'made by the bill, as an admission in pleading it relieves the complainant from proof; so far as it denies the facts, or controverts the case made by the bill, it puts the complainant to his proof. But so far as it alleges any new matter of avoidance, or any fact the burden of proving which would naturally rest upon the defendants, it is of no effect without proof. The making of the .contract, the payment of the one hundred dollars at its date, and that of the instalment due August 1st, 1854, as set forth in the bill, are admitted by the answer, and these facts require no proof. [18] The offer to pay the balance of the purchase money by complainant after all the instalments had become due, and the demand of a deed before suit brought, are denied by the answer, and there being no proof on the subject, the case stands as if these facts had not been alleged in the bill. But we think these facts were not necesssary before the institution of the suit. It is sufficient that complainant, by his bill, offers to make payment and to perform the contract on his part: — Stevenson v. Maxwell, 2 Comst. 415. The failure to make the offer before the institution of the suit could only affect the question of costs, which are in the discretion of the Court; and if the defendants, by their answer, relied upon the want of such offer, and offered on their part to convey upon payment, doubtless the Court, in decreeing specific performance,. would give costs to the defendants; but their answer relies upon other matter of defense, in no way connected with this, and entirely inconsistent with the idea that they would have accepted the money and performance if tendered at the time alleged. The bill alleges full performance generally of the contract in all things except the payment of the three instalments due August, 1855, August, 1856, and August, 1857. The answer denies performance so far as regards the payment of taxes, and sets up that defendants paid large sums for such taxes, and denies that, complainants improved the property as stipulated by the contract. As to the question of improvements, the stipulation in the contract is- so utterly indefinite (specifying -neither the kind or extent)* that the intention of the parties can not-be known, and it could furnish no definite basis for the estimation of damages for its breach; we must therefore treat it as immaterial to the present controversy. As to the default in the payment of taxes, this stands upon the same basis, as respects the question of specific performance, as the default in the payment of the several [19] instalments of the purchase money when due; and the offer of complainant in his bill of full payment and performance includes the taxes as well as the purchase money. In disposing, therefore, of the one we dispose of the other. It is insisted by the counsel for the defendants, that time is of the essence of this contract, and that complainant, having failed to make the last three payments at the times agreed upon, has forfeited all hi's rights under the agreement. We. do not think time was so far made of the essence of this contract that all the equitable rights of complainant became, ipso facto, forfeited, merely by his failure to pay at the times agreed upon, without anything done on the-part of the vendor indicating an intention to insist upon such forfeiture; especially after the payment of a considerable portion of the purchase money. His neglect to take any step to forfeit the contract on this account should rather be construed as an acquiescence in the delay. And in this case we think the only mode by which the vendor could forfeit the purchaser’s rights was by re-entry and taking possession of the premises, or some act equivalent thereto; this is the mode provided by the contract itself; and, by this portion of the agreement, the forfeiture seems to have been made dependent upon the re-entry. Until this or some equivalent act had been resorted to, the vendor, we think, could not forfeit the rights of the purchaser, so as to deprive him of the privilege of making-payment and calling for a conveyance. The answer avers a re-entry -or taldng of possession after default, October 1st, 1855 ; but this was a part of defendants’ case, and to be proved by them, and there is no proof on the subject. The complainant is therefore entitled to a decree for specific performance on payment of the balance of purchase money, and the taxes, with the interest. Exception was taken to the report so far as it allowed interest upon the several instalments of interest from the [20] time they respectively became due; and this exception was allowed by the Court: We express no opinion here whether interest upon such instalments of interest could have been recovered by the vendor in a suit for damages, or on a bill for specific performance brought by him. But the complainant comes into Court, acknowledging his default in making these payments when due, and asks a specific performance on making the payments now. As he asks equity he must do equity, and put the vendor in the same condition as if the payments had been made when agreed. Had this interest been paid when due, it would have earned interest from that time. We think, therefore, the exception to the report was improperly allowed, and that interest must be computed on the several instalments of interest from the time they respectively became due. Let a decree be entered in this Court thus far modifying the decree in the Court below, and giving complainant sixty days from the entry of this decree to make payment of the sum due the defendant Alfred M. Hoyt. The appellants are entitled to their costs on the appeal. The other Justices concurred.