Snider v. Lehnherr

By the Court, Bonham, C. J.: Although there is some evidence in this case tending to show that G-. W. Snider, in his lifetime, paid the full purchase-price (six hundred dollars) of the lot of land in ques [388] tion, yet we think that the preponderance of the testimony sustains the position of respondents, that there was a balance due upon the purchase-price of the lot, at the time of the death of Snider, the purchaser, which has never been paid. Some of the evidence on the part of respondents tends to show that the balance due on the lot was one hundred and fifty dollars, as claimed by them in their answer. Other evidence tends to show that the amount due was something less than one hundred and fifty dollars. The plea of tender of one hundred dollars to Lehnherr, by Elizabeth A. Snider, the widow of G. W. Snider, made, as is claimed, on behalf of the heirs of G. W. Snider, supports the theory of respondents, that a part of the purchase-price of the lot in question had not been paid. Although appellants allege in their complaint, and have attempted to prove as a matter of fact, that the full purchase-price of the lot in question was paid in the lifetime of G. W. Snider, the purchaser, yet the plea of tender is regarded in law as.an admission of the existence and validity of the debt offered to be paid. (2 Greenl. on Ev. § 600.) That the plaintiff, Mrs. Elizabeth A. Snider, had authority to make a tender of the balance claimed by Lehnherr to be due on the land, as the agent of the heirs of G. W. Snider, is denied by the respondents, and the testimony fails to show that she had any such authority. She does not appear to have any direct interest in the lot of land in question, in any event, because she is not, under the laws of this State, entitled to be endowed of an equitable interest in lands of which her husband died seized. (Farnum v. Loomis, 2 Or. 29.) A tender made by a person not a party in interest, and without authority from the debtor, is not valid. In contracts for the sale of land, time is not regarded by courts of equity as of the essence of the agreement, unless it clearly appears to have been so intended by the contracting parties. But, by the terms of the agreement for the sale of the lot in question, time is made material, or of the essence of the contract, by the clause therein which declares that, “in case of the failure of the said G. W. Snider to pay the aforesaid sums of money at the dates aforesaid, or [389] any part thereof, in gold coin of the United States, to the said John Lehnherr, his heirs or assigns, then the said G. W. Snider shall forfeit to the said John Lehnherr the sums already paid, and no deed shall pass for said land.” It is claimed by appellants that Lehnherr waived a strict compliance with the terms of the contract on the part of the heirs of G. W. Snider, by allowing his widow to remain in the possession of the property for a time after his death, and by proposing to her to purchase the interest of the heirs in the lot. But we think the evidence is insufficient to establish a waiver of the rights of Lehnherr, under the contract requiring the punctual payment of the balance of the purchase-price. The mere generosity of Lehnherr, in suffering the widow of Snider to remain for a short time in possession of the property in question, ought not, we think, to be construed into a waiver of the rights of Lehnherr under the contract. It would be but the natural promptings of a humane kindness on the part of Lehnherr not to proceed with unseemly haste to dispossess the widow of Snider; and his conduct in suffering her to remain in possession of the property for a time, and in proposing to her to buy her interest, or the interest of the heirs therein, is only evidence of a desire on the part of Lehnherr to deal not only justly, but generously, with the widow and children of the deceased. We think, then, under the terms of the contract, and by the preponderance of the evidence on the question of the non-payment of a part of the purchase-price, that John Lehnherr, the obligor in the bond or agreement for the sale of the lot in question, had the right, at his election, to treat the contract as rescinded; and, as a matter of strict legal right, this rescission might have been demanded by Lehnherr, without refunding the part of the purchase-price, which had already been paid by Snider. But the evidence shows that Lehnherr, by an agreement made with John Kelley, the administrator of the estate of G. W. Snider, paid to such administrator j five hundred dollars in coin, as the estimated amount of advanced payments on the lot in question, including lawful interest thereon, and that it was [390] then agreed that, in consideration of this payment, the contract of sale should be delivered up to Lehnherr and canceled. It is claimed by counsel for appellants, that the administrator had no authority in law to make this agreement; but, be this as it may, we do not think it would be equitable, even if it were true that the whole of the purchase-price had been paid by Snider in his lifetime, to decree a specific performance of the contract while the estate retained the refunded portion of the purchase-price of the land. It is a well-settled rule of equity jurisprudence, that the enforcement of specific performance is, to a great extent, left to the sound discretion of the court, and that, independent of strict or technical legal right, a party demanding a decree for specific performance, must show not only a legal right to the relief demanded, but also that such decree would be just, and meet with equity. (Story Eq. Jur., §§ 750, 769, 770; 2 Lead. Cas. in Eq. 695; 2 Clark, Iowa, 126; 9 Ohio, 511.) The decree of the court below, dismissing plaintiff’s bill, is affirmed.