Pappas v. Harrah

Wiest, J. Plaintiffs entered into contracts with defendant for the purchase of several lots, made substantial payments and then were in default. Defendant commenced, summary proceedings to obtain restitution of the premises. Judgments were rendered in the suits and under the statute plaintiffs had 80 days in which to redeem. During the period of redemption plaintiffs arranged with William B. Thompson to advance the money to pay the amounts due on the contracts and take deeds to his daughters. It is claimed defendant’s agents were notified of the fact that the money was available as soon as abstracts could be furnished, and they led plaintiffs’ negotiator to believe this was satisfactory and an adjustment would be perfected and deeds prepared regardless of the period for redemption. In the bill plaintiffs seek to reinstate two land contracts, to set aside two writs [462] of restitution, and have a decree for specific performance of such contracts. The circuit judge dismissed the bill, denied a petition for a rehearing and refused leave to file a supplemental bill. Plaintiffs are here by appeal. Three suits were commenced before the circuit court commissioner. In two of the suits judgments were rendered on June 15, 1921, and in the other on June 22, 1921. Plaintiffs had 30 days after judgment in each case to make payment and save their contract rights. They paid no money to the commissioner until July 22, 1921. This payment was too late to save the contracts involved in the judgments rendered June 15th, but in time to save all rights under the judgment of June 22d. Defendant accepted the payment upon the last judgment and performed that contract, but refused redemption as to the others. The record presents a question of fact. If plaintiffs have not established the claimed agreement for an ■extension by defendant of the time for redemption then this suit must fail. The claimed agreement rests upon the testimony of Mr. Ireland, as negotiator for plaintiffs. Mr. Ireland testified: “Yes, I had contracts in my possession. When I left your office I went over there, had the contracts and showed them, laid them on the desk, also laid this letter from Mr. Thompson, stating to Mr. Harrah that the money was there. Now, I says to this man (indicating Mr. Chapman) — we had been down different times in the place — we are going to pay the money right over there and you dismiss the cases down at the Circuit Court Commissioner May’s. And then the lady spoke up and she says, ‘Now, you will have to take these contracts, Mr. Ireland, to the Pappas Bros, and have them sign over.’ I did, and she said, ‘How do you want these deeds.?’ And I said, ‘Eight, for eight separate lots.’ Then, she said, ‘You will have to have eight separate slips,’ she wrote out the eight separate slips and I took them with the contracts over [463] to the Pappas and they signed them and I brought them back to their office, Harrah’s office, and laid them down and Miss Deans and this lady (indicating Miss Voorhies) said, ‘How soon do you want these?’ I said, ‘Just as soon as you can.’ She said, ‘We will get these out to six lots by the first of the month, but the other two lots, the man is dead, Baker, and it will take a little longer,’ and I said, ‘That is all right, that will do.’ ” The record falls short of establishing any agreement or assurance justifying plaintiffs in paying no further attention to the period of redemption. With the suits determined against them and the right of redemption about to expire, the plaintiffs should have tendered the amounts due on the contracts. The failure to make such tender is not excused by the assumption that defendant would not insist on his strict rights. We would import into the law an unsafe and litigious element if we should hold an offer to perform, with ability to do so, accomplishes the purpose of a tender, or constitutes ground for equitable relief. Defendant stood ready to take the money on July 13, 1921, when Mr. Ireland was in his office, but the money was not paid, and on July 14th he notified the attorney for plaintiffs that it was the last day in which to make payment. Counsel for plaintiffs complain because this notification came after banking hours; overlooking the fact that defendant was under no obligation to give notice at all. Plaintiffs knew of the period given them in which to redeem, they had the money available, made no tender of the amounts due under the contracts involved in this suit, and let the time for redemption expire. We find no fraud committed by defendant and no showing justifying us in holding there was an extension of the time within which to redeem. The petition for a rehearing presented no good reason for granting the same. The fact that defend [464] ant was purchasing the lots on contract, and did not have title thereto in fee, was no ground for a rehearing nor a reason justifying a supplemental bill, and was somewhat inconsistent with the specific performance asked for, and in any event constituted no equitable ground for relief from the forfeiture. No appeal having been taken from the findings of the commissioner of the amounts due on the contracts such matter cannot be retried in this suit. The decree is affirmed, with costs to defendant. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.