Barrett v. Dean

Dillon, J. i. contract: unilateral. Defendant contends that the true constiruetion of the agreement is, that -he was not absolutely bound tQ Pay pnrchase-money for the lots, but that he had the option to abandon the conT tract; that this option might be manifested by simply failing to pay any one of the installments of purchase-; money, or to pay the taxes or perform any of the conditions' on his part, he forfeiting whatever he might have paid at the time of abandonment; in short, that any failure of the defendant to perform his stipulations instantaneously and vpso facto made the agreement void. . This construction, it will be seen, makes the contract a species of felo de se. It puts every thing into the hands of the defendant. If the property advances in value during the five years, the defendant will pay, will claim the contract to be binding upon the plaintiff and will hold him to it. If it depreciates, he claims that he is armed with a weapon to cut the throat of the contract. and thereby, whether the plaintiff be willing or unwilling, to release himself from all further liability. We will not deny that parties may .make binding unilateral contracts of this character. But to give a contract such a construction, it should be plain and clear beyond question from the terms used that such was the intention of the parties. [427] Analyzing and critically examining the agreement in suit, such intention does not satisfactorily appear. Upon the purchase, defendant acquired the right to possession.. It is so stipulated. No part of the purchase-money was paid in hand, and none was to be paid until a.jy£a/r. from the date of the, contract. Under the defendant’s theory the plaintiff was bound to keep the title to the land for him until the expiration of the year, and then he, the defendant, might say to him, “ I will take it ” or “ I will not take it,” just as it might suit his convenience or his interest. If the property fell in value and defendant elected not to take it, the defendant would forfeit nothing because he had paid nothing; meantime, perhaps, being in possession or at least having the right to it. This consideration deprives the argument of the defendant’s attorney of much, if not all, its force. That argument is this : that the obligor (Barrett) agreed that Dean might have the privilege of saying whether he would keep the land or not, and that the consideration and inducement for giving this privilege was the mutual stipulation, binding upon Dean, that by his failure to pay “ all payments thereon should be forfeited.” There would be more force to this argument had a portion of the purchase-money been paid at the time of the making of the contract. Looking at the contract, we find that it first sets out what Dean agrees to do. And, first, he agrees to pay the-purchase-money, with interest, in five annual installments. The covenant to pay contains no condition, but is absoh.de. And, second, Dean agrees to pay all taxes, when they become due, “ until the aforesaid purchase-money ■ shall' be fully paid in the manner above stated.” This engagement is'also without words of condition. And, third, he agrees that he holds possession subject to removal if he fails to perform “ any condition or covenant herein contained.” The next division of the agreement sets out Barrett’s [428] obligations, which are: First, to malee a deed upon demand, when the purchase-money is. fully paid. Second, to pay Dean $900, as a penalty if he fails to make such deed, and it.is in this connection that the clause in the agreement occurs upon which the defendant relies. This .clause commences with the word “ but,” and thus reads: “ But it .is distinctly agreed and understood, by and between the parties hereto, that if' the said party of the second part (Dean) shall faihto make, an}' of the payments at-the time, &c,, or shall fail to comply, with, &c., any of the covenants, &g., -herein specified, this agreement shall be thenceforth utterly void,- and all payments made thereon forfeited.” Taking the whole contract together,-we think this last clause means and was intended, to mean simply this, that Barrett’s agreement to convey should n'ot be binding upon him, and Dean should forfeit all money paid if he should not fully comply with his contract. This provision was intended for Barrett’s benefit, not Dean’s. This case is obviously distinguishable from Bradford v. Limbus (10 Iowa, 38). We do not deem it profitable to review the authorities, not all reconcilable with each other, referred to by counsel. Cases of this character turn very much upon the special terms of the agreement, and these are generally different, each case having features rendering.it more or less unlike other cases, to which it may have a general resemblance. % tenijebot dkf.d : case followed. The tender of a deed (the plaintiff praying for authority from the court to execute one on. payment of the purchase-money, and this authority being afterward , ' _ . „ . given by the decree of the court) before suit brought was not essential. Grimmell v. Warner, 21 Iowa, 11, and cases cited. Barrett v. Peck, involving same questions, is decided the same way, and the decree in both cases is Affirmed.