Martin v. Gulf Coast Orchard & Products Co.

WALKER, Circuit Judge (after stating the facts as above). The action of the court in refusing to decree specific performance of the contract is sought to be sustained on the following grounds: (1) That the contract did not sufficiently describe the land which was the subject of it. (2) That appellant did not make the deposit of $12,S00 at the time specified in the contract. (3) That the appellant failed to deposit the additional $500 and the notes and deed of trust at the time he deposited the $12,500. (4) Thai the service and pendency of the garnishment had the effect of preventing the -payment of the $12,500 in pursuance of the contract. (5) That before this suit was brought the contract was canceled by the parties making another contract, containing different provisions and embracing additional land. The grounds mentioned will be considered in the above-stated order. [1] 1. There was no insufficiency in the description of the land which the appellee agreed to sell to the appellant. The attached map, colored as above stated, identified it as clearly and completely as if a proper description of it had been set out in the written offer which was accepted. _ . _ [2j 2. The provision of the contract calling for an immediate deposit by the appellant of $12,500 was waived by appellee’s letter of May 24, 1919. 36 Cyc. 716. The making of the deposit by the appellant within the time fixed by that letter had the effect of an estoppel on the appellee to complain of appellant’s failure to make the deposit immediately, [3] 3. Provisions of the contract plainly indicate that appellee was-to furnish an abstract, showing the location of the 600-acre tract which, was to be deeded without a warranty, before the appellant was required to pay the additional $500, and that it was not contemplated that appellant was to execute and deposit the notes and deed of trust provided for prior to the execution and deposit in escrow of appellee’s deed, which was to be executed and deposited in escrow at the time of the making of the deposit of $12,500. Appellant was not put in default by failing to pay the additional $500 and to execute and deposit the notes and deed of trust provided for before appellee furnished any abstract or executed and deposited in escrow any deed, especially when appellant was ready and willing to perform his part of the contract, and notified the appellee to that effect. [12] [4] 4. By the deposit in bank of the $12,500 in the manner provided for by the contract the appellant parted with all control of that money, and the bank held it in trust, to be applied as provided in the contract. The right of tlie appellee to receive that money on complying with its part of the contract was not subject to be defeated by the garnishment, which was issued in the suit brought by a third party against the appellant. So far as appears, there was not, after the terms of the deposit were disclosed by the answer of the garnishee, any attempt to subject that deposit as property in the bank’s possession belonging to the appellant, or to treat the bank as indebted to the appellant in the amount of the deposit; and the garnishment was discharged without anything , having been done to prevent the money being applied in accordance with the terms of the deposit of it. The deposit having been made by the appellant in accordance with the agreement of the parties, it was not deprived of effect as a performance by the appellant in that regard by the abortive attempt of a third party to subject the money deposited by a garnishment proceeding. Equally ineffective was the attempt of the apoellee to put an end to the contract because of an alleged default of the appellant which never occurred. 5. As to the claim that the contract sought to be enforced was canceled by the parties making another contract, it is enough to say that the evidence adduced was not such as to warrant a finding that the contract sued on has ceased to exist in the way claimed or in any other way. The pleadings and evidence show that the appellant has performed his part of the contract, except so far as performance has been prevented by conduct of the appellee, and that all along appellant has been willing, ready, and able to do all the contract requires of him. In our opinion the record discloses nothing to warrant a denial of the relief sought. Union Pacific R. Co. v. McAlpine, 129 U. S. 305, 9 Sup. Ct. 286, 32 L. Ed. 673 ; 25 Ruling Case Law, 271. It follows that the decree appealed from should be reversed; and it is so ordered. Reversed.