Codding v. Wamsley

At one time a purchaser was not allowed to maintain a bill against the seller for the specific performance of a contract to sell lands, unless he himself was bound by the same contract to purchase. Reciprocity of obligation was necessary. Newland on Oontr. 153; Fry on Spec. Perf., § 286, et seq.j Fonb. Eq. Bk. 1, ch. 6, § 13. But this rule, it seems, is not now in force. All that is requisite is that the contract on the part of the seller be founded upon a sufficient consideration, and be made conformably to the requirements of the statute of frauds. If these facts concur, and the circumstances be such as establish a right to equitable relief, the fact that the contract was not mutually binding is no longer an insuperable bar, although it is a material ingredient in restraining the exercise of the equitable jurisdiction' of the court. The plaintiff, by filing the bill, makes the remedy mutual, and therefore the objection to a decree to compel the performance of a unilateral contract is taken away. Adams’ Eq. 82; Batten’s Cont., cap. 5; Willard’s Eq. Jur. 267; Justice v. Lang, 42 N. Y. 492, and cases cited on this point; sed vide, S. C., 52 id. 323.

The contract in this case is not an absolute one to sell, but gives *52to the plaintiff merely an option or right of election of becoming the purchaser of the lands at any time within three months after the date thereof. The plaintiff did not avail herself of the privilege thus given, within the time limited. The court is now asked to say that the time specified is not of the essence of the contract, and that the option may be exercised after such time. We cannot accede to that proposition. It would in effect make a new contract for the parties. In ordinary cases of contracts between vendor and purchaser, the time fixed for the payment of the purchase-money is not of the essence of the contract, unless the parties themselves have either expressly or by reasonable implication agreed that it shall be so considered. The reason is that the contract gives a present interest in equity, and forfeitures are odious. In this case, however, the defendant has agreed to convey only upon condition that the plaintiff shall perform the requisite acts on her part within three months. The plaintiff nqt being bound to purchase, it would be inequitable to hold the defendant bound to sell after the time fixed by the contract; for by so doing the defendant would be held to a performance if disadvantageous to him, and yet if advantageons to him he could not compel a performance by the plaintiff. It is not an answer to say that the plaintiff agreed to pay an excessive rent, as a consideration for the option granted to her. That was quid pro quo for the privilege conferred. ' It was competent for the parties to agree upon any consideration therefor. It appears that the defendant, acting under advice of counsel, took special pains to avoid incurring the obligations of a vendor in an ordinary contract of sale. The language of his covenant effectually secures that object. Straining it to the utmost it is a covenant contained in a mutual contract to give an option or right of purchase, and gives no present interest. There being nothing in the nature of the contract contrary to law or equity, we ought to give it effect accordingly. And such is the rule governing the exercise of the jurisdiction of the court in this class of cases. It is stated in Story’s Eq. Juris., § 777 a (11th ed.), as follows: “But notwithstanding the rule is well established in courts of equity that time will not be regarded as indispensable, in regard to decreeing specific performance of contracts for the actual sale of lands on one side, and the actual purchase on the other, it is different where the contract gives a mere election to purchase upon certain conditions. Accordingly, where upon a lease with the right of purchase within seven years, upon *53giving three months’ notice, and paying a fixed snm at the expiration of such notice, the lessee gave the requisite notice but did not pay the money in time, a bill for specific performance was dismissed. And a similar decision was made by the Lord Chancellor, where his lordship said: ‘The things required must be done in the order of sequence stipulated. These were notice, and the payment of money on a day certain.’ ” Weston v. Collins, 34 L. J. (Chan.) 353; Lord Ranelagh v. Milton, 10 Jur. (N. S.) 1141.

In Mason v. Payne, 47 Mo. 517, the suit was founded upon a stipulation in a lease giving the lessee the option of purchasing the demised premises, in fee, at any time within five years; but required, him, if he elected to purchase, to give thirty days’ notice of his intention to purchase, and to make payment of one-fourth. The court held that the thirty days’ notice was of the essence of the contract, and that notice given two days before the expiration of the five years was too late. See, also, German v. Machin, 6 Paige, 288; Boucher v. Van Boskirk, 2 A. K. Marsh. 345; Geiger v. Green, 4 Glib. 472. We think, therefore, that time was of the essence of the contract in this case; and that the failure of the plaintiff to comply with the terms on which the option was granted, deprived her of the benefits thereof, unless the defendant waived the non-compliance with the condition. A party, for whose benefit a condition is imposed, may waive the strict performance thereof. But mere indulgence is never to be construed into such waiver. Gray v. Blanchard, 9 Pick. 292.

' Upon this subject, the referee finds that the defendant several times expressed a willingness to the plaintiff's agent, and to her attorney, to allow her to become the purchaser of the premises on the original terms, notwithstanding the expiration of the time limited, but that he declined to make any agreement to extend such time. Although the evidence on this point was conflicting, yet we see no reason to disturb the finding of the referee. The result is that the defendant indulged the neglect or inability of the plaintiff, without waiving his rights. Such indulgence can have no legal effect in determining the case. If the referee had found that the defendant either caused, or sanctioned, or authorized the plaintiff’s default, the case might have been different. But there is no such finding, and the evidence on the part of the defendant is that he merely expressed a present willingness to take the money, while, at the same time, he refused to make any promises for the future. *54Nor did he do any act indicative of his intention to waive the forfeiture, unless the money were paid presently. Under such circumstances, it is impossible to hold that there was a waiver.

We have no power, on this appeal, to reform the contract, even if the case showed proper grounds for such a decree.

The judgment must be affirmed.

Judgment affirmed.