Garrett v. Cronin

SULLIVAN, J.

— This action was brought by the respondent as plaintiff against the appellants. The contract that is sought to be enforced was entered into on the fifteenth day of October, 1901, between the appellants Cronin and wife and one Greenburg. By ■ the terms of said contract said Cronin and wife agreed to sell and convey to said Green-burg three certain town lots in the town of Mountainhome, for $1000, payable as follows: $200 cash, $400 in six months, and $400 in twelve months from the date of said contract, which payments were to be made to the Citizens’ State Bank of Mountainhome. The said appellants executed a warranty deed conveying said premises to said Greenburg, and placed the same in escrow in said bank with directions to deliver the same to said Greenburg upon his making the payments therefor as above stated; and it was stipulated in said contract that in case of “failure to make said payments or either of them in the manner and at the times above mentioned, then the said bank shall immediately return said deed to said parties of the first part, and said parties of the first part shall be relieved from all obligation either in law or in equity, to convey said premises to said party of the second part.” It was also agreed that the first party should remain in possession of said premises and collect and receive the rents, issues and profits of said premises *217 until such final payment was made; provided, however, that the second party might, at his option, have possession of said premises for the purpose of erecting any building or buildings thereon. It is alleged in the complaint that said Cronin had leased said premises to a Chinaman for a- term of ten years from the eighth day of September, 1897, and that said Chinaman had possession of said premises under said lease and that when the last payment- became due said Cronin and wife were not able to give possession of said lands and premises as stipulated in said agreement, and that for that reason, and others named, the respondent had been damaged in the sum of $400, and he prays for judgment for damages; and that said bank be enjoined from delivering said deed to said appellants, and that said deed be delivered to the respondent, and for further relief.

The answer of appellants (Cronin and wife) puts in issue many of the allegations of the complaint, and admits that they refused to deliver up said deed until said last payment was made and aver that said last payment was never tendered to them, and that they have always been able, ready and willing to turn over possession of said property to respondent upon the payment of the balance due on said property at the time and in the manner mentioned in said agreement; that said last payment was not made as stipulated, and aver that by reason of the default in making said last payment as stipulated, the respondent is not entitled to a delivery of said .deed, and ask that the action be dismissed and for their costs.

The cause was tried by the court and findings of fact and conclusions of law and judgment were given in favor of the plaintiff. The appeal is from the judgment and taken within sixty days after rendition of judgment.

It is contended that the evidence does not support the findings. Among other findings, the court found that the agreement was entered into as above set forth, and that plaintiff paid defendants on said contract or agreement the sum of $600; further finds that said premises had been leased to a Chinaman for a term of ten years, and that by reason of said *218 lease and the Chinaman’s possession of said premises the said appellants were not able to give possession of said premises as per terms of said contract and agreement; that said lease was not recorded and that the plaintiff did not know of said lease until time to make the last payment, and that when he discovered the existence of said lease he refused to make said payment until said appellant would deliver possession of said premises to him; that the defendants were unable to deliver possession of said premises to the respondent and refused and neglected to deliver possession thereof. It appears from the evidence that the respondent knew that the Chinaman was in possession of said premises and had a washhouse thereon at the time said contract was entered into. That fact appears in a letter dated October 1, 1901, written by said Greenburg to Cronin. It also appears from the record that said Greenburg was acting for the respondent in this matter, and thereafter he conveyed whatever title he might secure to said premises by virtue of said warranty deed from Cronin and wife to one A. G. Smith for the benefit of the respondent. It also appears that said Smith collected rents for the Cronins, they residing in the state of Utah. The time for making the last payment on said contract expired on the 15th day of October, 1902, and it seems that some months thereafter the appellant Cronin had written to said A. G. Smith and requested him to withdraw said escrow deed from the bank and return.it to him; and on July 14, 1903, about ten months after the last payment had become due, said Smith wrote to Cronin, stating that he inclosed the deed to him, but through oversight or mistake he failed and neglected to inclose it as stated in the letter.

It will be noted from the above-stated facts that Smith had received from Greenburg whatever title might be procured by him through said deed placed in escrow, with the evident understanding that he should convey it to respondent in ease the escrow deed was delivered. It appears from Cronin’s testimony that he wrote a letter to said Smith requesting him to take said deed out of the bank and send it to him, and the letter of Smith above referred to was no doubt in reply to *219 Cronin’s letter. Cronin also testified that no one ever offered to pay the balance due on said property under any conditions whatever. The Chinaman who was in possession of said lots testified that ne was ready to move out and give possession of said premises whenever Cronin asked him to. The evidence of Cronin and the Chinaman stands uneontradicted, and there is no evidence showing that respondent ever demanded possession of said premises from Cronin, and it is clear from the evidence that Cronin was ready, able and willing to give the respondent possession thereof had the last payment been made when due.

Said contract was an option to purchase said town lots, and time was of its essence. Conceding in this ease that the respondent was justified in refusing to make the last payment as stipulated (although we do not decide that question), if the respondent had not been able to give him possession when said payment became due, yet the evidence shows that appellants were able to place the respondent in possession thereof at any and all times since said payment became due. "We are forced ¿o' the conclusion that the evidence is not sufficient to support the findings. The judgment must be reversed, and it is so ordered. Costs awarded to appellants.

Stoekslager, C. J., and Ailshie, J., concur.