Luther v. Hekking

The opinion of the court was delivered by Burch, J.: The action was one of ejectment. Judgment was rendered for the defendants, on the pleadings and opening statement of counsel for the plaintiffs. The plaintiffs appeal. The petition' was in the abbreviated form permissible under the statute. The facts were that the Luthers sold the land to the Hekkings, who went into possession. The consideration was $5,000, to be paid as follows: $25 cash; $25 on-June 1, 1919; and $25 on the first day of each succeeding month until the whole sum, with interest on deferred payments, payable monthly, should be paid. The vendees were irregular in making payments. After November 1, 1919, nothing was paid until March 3, 1920, when $126.22 was paid. At that time the total payments amounted to $385.99, a sum less than the monthly payments due, with interest, and interest on the deferred payments. The contract of sale provided for forfeiture, at the option of the vendors, in case of default in making any payment. While the contract was not read to the court, its terms were sufficiently stated, and there is no dispute that the forfeiture provision was as follows: “And in case of the failure of said party of the second part to make either of the paj'ments or perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit the payments made by him on this contract, and such payments shall be applied by said parties of the first part in full satisfaction and in liquida [479] tion of all damages by them sustained, and they shall have the right to reenter and take possession of the premises aforesaid.” Nothing was paid after March 3, 1920. On May 12, 1920, notice was served exercising the option to declare forfeiture, demand for possession was made, -and on May 15 the action was commenced. The district court was of opinion the plaintiffs were obliged to resort to an action to foreclose. However that may be, the plaintiffs acted too precipitately. Assuming that time was made essence of the contract, privilege to declare forfeiture was waived by the vendors, and payments were accepted long after they were due. This acceptance did not, ipso jacto, effect permanent waiver of the forfeiture privilege, but it placed the parties in such a situation that forfeiture could not be declared without previous notice that the privilege would be insisted on. What the vendors should have done on May 12 was to serve on 'the vendees notice that, unless defaults were made good within a stated reasonable time, the contract would be declared forfeited. This is the doctrine fairly indicated by the decision in the case of Drollinger v. Carson, 97 Kan. 502, 155 Pac. 923, on which the vendors rely, and is the true doctrine. “Whether time is or is not of the essence of the contract, if the vendor has waived strict compliance with its terms as regards time of payment, he cannot thereafter rescind or forfeit the contract, without notifying the purchaser of his intention to do so unless payment is made, and allowing him a reasonable time for performance.” (39 Cyc. 1384.) The judgment of the district court is affirmed.