Longfellow v. Moore

Mr. Justice Walker delivered the opinion of the Court: From all of the evidence in the case wé are compelled to conclude that the written agreement signed by appellee and accepted by appellant was the agreement of the parties. It is one of the most, familiar rules to the profession that a contract can not rest partly in writing and partly by verbal understanding between the parties, hence all prior propositions and negotiations are superseded by the written contract. If in its preparation any material portion of the agreement is omitted, a bill may be filed to correct the agreement; but there is no such mistake alleged or attempted to be shown in this case. We must therefore receive the written agreement signed by appellee as the agreement of the parties. The principles of estoppel would not permit appellee to throw appellant off of his guard, and thus obtain an inequitable advantage, by agreeing to extend the time for appellant to perform the contract, and then insist on it as it was written, and the evidence in this case shows that time was extended one year on all of the payments, and appellee is estopped from insisting on a performance at the times specified in the agreement. Appellant therefore had the extended time within which to perform his part of- the agreement, but this verbal agreement made no other change in the written agreement than the time for its performance. Appellee so understood it when he had the papers prepared for execution according to the extended time. So did appellant when he demanded a performance of the agreement. According to the terms of the written agreement, .appellant had until the 20th day of February, 1879, to purchase on the terms specified, but if he determined to so purchase, the agreement, in terms, required him to declare- such intention by notice in writing, and the written agreement required appellant to make his election, and to give the written notice of his intention to purchase, by the 20th of February, 1879. But he never did give such a notice. He, in July, 1879, verbally demanded the deed, some five months after the time for his election had expired according to the terms of the contract. But it may be said that appellee, by endeavoring to get appellant to make the purchase, and the latter agreeing to do so, before the 1st of July, waived the time specified in the agreement. This is true, but it was but an extension of the time until the last of June. It was in his power to insist on appellant’s accepting the offer and closing up the purchase by the day named in the agreement, and appellant, had appellee not extended the time, could not after that date have compelled him to sell, unless he could have shown circumstances that would afford an equitable excuse for the delay. None are shown in this case, and it is hard to conceive how such an excuse could be shown for failing to give the notice, and demand the deed on an offer to execute the notes and mortgage. The time, then, having expired for appellant to elect to purchase, appellee was not bound to sell, and he then had the power to impose such terms as he chose, and appellant having previously failed to elect to purchase, could have accepted the new terms or not, as he chose. He did not, but was willing, as we infer from the evidence, to have done so at a reduction of interest on the deferred payments from ten to eight per cent. He seems to have evaded meeting appellee to close it up at ten per cent, as he agreed, until the law reducing the rate of interest to eight per cent became operative. He then demanded a fulfillment of the contract, but appellee had not extended the time for him to elect to purchase until the 1st of July, but insisted it should be closed before that time, according to the terms of the written agreement with the extended time for the payments. He urged and endeavored to-get appellant to purchase on those terms, without success. He informed appellant that it must be closed before the first day of July, because the law forbade the taking of ten per cent interest after that date. It is, however, urged, that appellant, after the 1st of July, 1879, tendered the first payment, with the cost of material for the fencing, amounting to $1190, and demanded a deed. We have seen that he had no right to elect on or after the 1st of July, and the tender came too late; but if it was not, it was not sufficient, because he did not tender the notes and mortgage, according to the terms of the written agreement. Appellee was not required, by any agreement appellant claims to have been made, written or verbal, to convey the land, unless the deferred payments were secured, nor was appellee required to have the notes and mortgage prepared ready for appellant to execute. It was his duty to prepare, execute and tender them, even had he been legally entitled to make a tender. It is therefore manifest that this attempted tender was wholly insufficient. Appellant’s counsel say, that when appellant purchased of Williams, he gave a mortgage to secure the unpaid purchase money, and appellee became its owner by purchase and assignment, and once a mortgage always a mortgage. We are wholly at a loss to see any application such principles have to this case. . The bill .is not ■ framed to have the Williams transaction declared a mortgage, or to be permitted to redeem from it, but it is to have the contract for a purchase specifically executed, and a complete answer would be, that the parties, by mutual agreement, canceled the indebtedness and mortgage, and appellant conveyed the "premises to appellee, and appellant rented them at the sum of $700 per annum, took a lease, and occupied them as appellee’s tenant. If this was not a satisfaction and termination of the mortgage, it is impossible to conceive what would have that effect. Nor did the agreement to give appellant the option to purchase within a specified time, and upon specified terms, revive it as a mortgage. Is it possible to suppose, after the satisfaction of the mortgage, appellee could have, at any time, foreclosed as on a mortgage ? Surely not. And if not a mortgage in appellee’s favor, it surely could not be in appellant’s favor. If a mortgage, it must be mutually so as to both parties. A careful inspection of this record fails to disclose any error, and the decree of the court below is affirmed. Decree affirmed.