Potter Realty Co. v. Derby

Mr. Justice McBride delivered the opinion of the court. 1. The agreement of plaintiff to spend $100,000 a year is a concurrent covenant, and was, no doubt, a large part of the consideration which induced defendant to enter into the agreement. Plaintiff cannot neglect to comply with this portion of its agreement and recover installments which are unpaid at the time the breach occurred. 2. The parties having agreed upon their own remedy for a breach of the contract, that remedy is exclusive. [572] They have so agreed here hy stipulating that in the event of default in payment of any installment of the purchase price all payments theretofore made shall be forfeited to the seller and the contract shall become void as to both parties without notice, and that 30 days after such default the seller shall have the right to enter upon the property and take possession thereof, together with the improvements. We find no reason for construing this contract to mean anything different from what its language implies. On default in the payments the purchaser loses what he has already paid, and the agreement becomes “void as to both parties.” It would be juggling with words to say that this language should be construed to mean “void at the option of the seller,” or “void at the option of one party. ’ ’ None of the cases cited by the learned counsel for respondent involve the construction of an agreement containing the language used in the contract here pleaded. In Maffet v. Oregon & Cal. R. Co., 46 Or. 443 (80 Pac. 489), the forfeiture clause was as follows: “And it is hereby agreed and covenanted by the parties hereto that the times of the payments are of the essence of this contract. And in case the second party shall fail to make the payments aforesaid, and each of them, punctually and upon the strict terms and times above limited, and likewise to perform and complete all and each of the agreements and stipulations aforesaid strictly and literally, without any failure or default, then this contract, so far as it may bind the first party, shall become utterly null and void, and all rights and interests hereby created or then existing in favor of the second party, or derived from them, shall utterly cease and determine, and the right of possession and all legal and equitable interests in the premises hereby contracted shall revert to and revest in said first party, without any declaration of forfeiture or act of re-entry; or any other act by said first party to be performed, and without any right of said second party of reclama [573] tion or compensation for moneys paid or services performed, as absolutely, fully and perfectly as if this contract had never been made. ” In Morris v. Green, 62 App. Div. 460 (70 N. Y. Supp. 1096), the forfeiture clause read: “And the party of the second part hereby expressly agrees with the party of the first part that should any default be made in the payment of the said installments, or any one of them, on any day whereon the same may become due, then, and from thenceforth, after the lapse of thirty days from the time of such default, each and every previous installment paid by the party of the second part without any notice to the said party of second part, notice, tender and demand being hereby waived, become and be forfeited by the party of the second part to the party of the first part as fixed and liquidated damages, and be irrecoverable and beyond demand by the party of the second part, and this agreement shall determine and be of no further effect or virtue. ’ ’ These fairly represent the class of cases in which forfeiture clauses have been held to be solely for the benefit of the seller. In none of them is it stipulated, as here, that default shall render the agreement void as to both parties. In the case at .bar, where the whole agreement seems to have been drawn advantageously to the seller, it is not unreasonable to assume that the purchaser intended to reserve to himself the one small privilege of losing what money he might at any time have paid, and thereby be automatically released from further obligation. The judgment is reversed and the cause remanded to the Circuit Court, with directions to dismiss the action. Reversed, With Directions to Dismiss. Mr. Chiee Justice Moore, Mr. Justice Benson and Mr. Justice Burnett concur. •