Mahoney v. McCrea

Given, J. [738] I. The court instructed that a failure to pay any installment of the purchase money evidenced by these notes would operate as a forfeiture of all the defendant’s interest in the real -estate, and the money paid by him to purchase the same, unless the plaintiffs elected otherwise; that it was the duty of the plaintiffs to elect not to treat the contract as forfeited, within a reasonable time after the -default was made in payment, and to notify the defendant thereof; and that unless the plaintiffs did so notify him within a reasonable time the [739] defendant had the right to assume that the plaintiffs claimed a forfeiture; and t;hat under such circumstances the plaintiffs would have no right to enforce collection of the notes. The only question submitted to the jury was whether or not the plaintiffs, within a reasonable time after the defendant made default in payments of said notes, elected not to treat the contract as forfeited, and notified the defendant thereof. Appellants contend that this is an erroneous construction of those parts of the written contract set out above, providing lor forfeiture. They contend, on the authority of Barrett v. Dean, 21 Iowa, 423, and Sigler v. Wick, 45 Iowa, 690, that the defendant could not work a forfeiture by defaulting in payments; that the right of forfeiture its for the benefit of the plaintiffs, and at their election; and that no forfeiture could exist until so elected by them. In Barrett v. Dean, the contract provided that a failure to> make payment?, when due should render the agreement utterly void, and all payments made thereon forfeited. It also' provided that the purchaser should hold possession subject to removal if he failed to perform any condition oi covenant of the contract. It was held that, taking the whole contract together, it was intended that Barrett’s agreement to convey should not be binding upon him, and Dean should forfeit all money paid if he did not fully comply with his contract, and that this- provision was intended for Barrett’s benefit, not Dean’s. In Sigler v. Wick, the contract provided that, if the purchaser should fail to make payments when due, the land should be considered forfeited, and the vendor should have the right to- enter upon the possession of the same, and should be held under no obligation to the vendee. It was held that the forfeiture should be at the option of the vendor. It is said, “The general rule is that a stipulation that the contract for the sale of the land shall become void upon non-payment is for [740] the benefit of the vendor.” A noticeable difference between those contracts and the ones under consideration is that in these the forfeiture is expressly made to follow a failure to pay, “unless the said parties of the first part shall elect otherwise.” Here we have an affirmative 'duty imposed upon .appellants, — to elect in case of default in payment, whether or not that default shall work a forfeiture. In this respect these contracts are unusual, but it is conceded that in construing them we should give effect to the intention of the parties. We think it was clearly the intention of the parties that in case of default of payment the appellants should elect within a reasonable time whether they would insist upon forfeiture or performance, and notify the defendant thereof. The instructions are in harmony with this view of the contract. See Steel v. Long, 104 Iowa, 39. 2 II. The court instructed that acceptance of payment after the same was due would not be a waiver of the right to forfeit by reason of a default in any iustall- • ment. falling due after such acceptance. The cor-redness of this instruction is not questioned, but appellants insist that, at the time forfeiture was waived by receiving payment, there were three hundred and seventeen 'dollars and nineteen cents, due more than was paid, and that, notwithstanding forfeiture resulted from subsequent defaults in payment, they are entitled to recover the said sum of three hundred and seventeen dollars .and nineteen cents, with interest. Turning to the contracts, we see that it is “any money paid by him” that the defendant forfeited, and not money which, in the absence of forfeiture he might be liable to pay. Our conclusion is that the judgment of the district court should be affirmed.