
    Zeidman v. Davis.
    (Decided December 9, 1929.)
    
      Mr. Charles E. Dornette and Mr. Charles C. Benedict, for plaintiff in error.
    
      Mr. Allen C. Boudebush and Mr. Harry Termenbaum, for defendant in error.
   Hamilton, J.

The action below was presented upon a petition for specific performance of a contract for the purchase and sale of real estate, and on defendant’s cross-petition for recovery of the sum of $500, deposited as a part of the purchase price at the time of the execution of the contract.

The case was submitted to the court without the intervention of a jury, and resulted in a judgment, refusing specific performance of the contract, and entering judgment on the cross-petition for the amount of the deposit, with interest. To that judgment the plaintiff below, Hannah Zeidman, prosecutes error to this court.

The contract was entered into on the 3d day of March, 1927, under which the defendant, David Davis, agreed to purchase certain real estate of plaintiff, Zeidman, and to pay therefor the sum of $20,600, payable $4,000 cash on delivery of the deed, assumption of a mortgage of $10,000, and execution of a second mortgage of $6,600 for the balance of the purchase price. The property was to be transferred by deed of general warranty on or before 60 days from date; title to be clear, free, and unincumbered, except as to taxes. There were at the time uneanceled mortgages on the property aggregating $15,372.

It appears that no offer to carry out the contract of sale and purchase was made by the seller until June 14th, six weeks after the expiration of the time limit of 60 days for the completion of the contract; that on June 14th the plaintiff, through her agent, called at the home of the defendant about 8:30 o ’clock at night and made a tender of a deed, which the defendant refused to accept. At this time none of the mortgages had been paid and canceled, and such cancellation was not had until January 9,1928, more than eight months after the expiration of the time limit for the execution of the contract.

The suit was filed June 20, 1927.

Plaintiff contends that time is not of the essence of the contract, and that upon equitable principles she is entitled to have specific performance if she is able to present a good title at any time before the decree is pronounced in the case; that under the facts she was able to present a good title prior to the pronouncement of the decree by the trial court. This right is controlled by the facts of the given case. Time may be made the essence of the contract by the parties; an unreasonable time may elapse, or circumstances arise to prejudice the rights of the parties.

In courts of law time is considered as of the essence of all contracts.

The equitable rule is stated in the syllabus of the case of Rummington v. Kelley, 7 Ohio, 97, pt. 2, as follows:

“Although a contract for the sale of lands contains no express stipulation that a failure to pay shall authorize the vendor to rescind, yet the vendor may upon such failure, by prompt action and proper notice, put an end to the contract, so that equity will not decree a specific performance.”

In the case of Schmidt v. Reed, 132 N. Y., 108, 30 N. E., 373, the third paragraph of the syllabus is:

“When, by the terms of such a contract the time for the performance is not of the essence thereof, it may be made so by reasonable notice by either party, to the other, and the party giving the notice may then avail himself of the forfeiture on default.”

In Hermansen v. Slatter, 176 Wis., 426, 187 N. W., 177, 178, the court says in the opinion:

“It was agreed that the conveyance was to be made and an abstract showing merchantable title was to be furnished on a given day, and there was a condition that a loan might be procured on the premises payable on the same day. There was testimony that the vendee had sold his own farm, and that he notified the vendor on July 11 and July 22 of this fact; that he then gave notice that, as he had sold his farm and must give possession on November 1, he must then get possession of the premises involved in the contract.”

The court in the above case refused specific performance.

Considering the instant case under the rules stated in the decisions above, we necessarily revert to the facts in the case. The evidence is in sharp conflict on the essential facts, and the case turns largely on the veracity of the plaintiff and the defendant.

Defendant testifies that at the time he entered into the contract with Zeidman, he was in fact purchasing the property for one Levine; that on the same day he entered into the contract with Zeidman he also entered into a written contract for the resale of the property to Levine; that he so informed Mrs. Zeidman, and told her that he must have the title clear and the deed within the 60 days named in the contract, in order to hold Levine to his contract of resale. He is supported in this by the introduction in evidence of his written contract with Levine, which called for the execution of that contract on or before 60 days. He further testified that he kept his automobile in the garage of Mrs. Zeidman, and saw her frequently, and that he told her several times that he must have the sale consummated within the time named in the contract in order to hold Levine on his purchase; that he prepared to take over the property by securing a loan on other property of his own, in order to make the cash payment; that he did this in April, about 30 days preceding the time limit for the consummation of the sale to him; that a day or two before the expiration of the time limit of May 3d he again told Mrs. Zeidman he must have the deed. This notice and these conversations were denied by Mrs. Zeidman, whose testimony was somewhat discredited by the fact that her son testified that he was present and heard Davis tell his mother, or say something to her, about the sale to Levine.

There is no evidence whatsoever that the seller, Zeidman, made any effort to have the mortgages canceled and the title cleared within the time fixed in the contract; nor did she make any tender of performance within a reasonable time thereafter, unless the tender of a deed six weeks after the time fixed in the contract was such.

At the time of the tender of the deed, on June 14th, six weeks after the time limit of May 3d, it is admitted the mortgages were not paid and canceled, and there was no showing that the seller was in a position to make a good title at that time out of any purchase money. This tender was made at defendant’s home, at 8:30 o’clock at night. The agent had with him a witness, and the circumstances indicate that the tender of the deed was made for the purposes of this suit rather than a tender of performance in good faith.

The trial court had a right to believe this evidence, and, if it did so, its duty was to refuse specific performance and render the judgment that it did. The case being here on error, we can only affirm that judgment.

Judgment affirmed.

Cushing, P. J., and Ross, J., concur.  