
    BEILER, Respondent, v. TAYLOR et al., Appellants.
    (167 N. W. 725.)
    (File No. 4308.
    Opinion filed May 18, 1918.)
    
      Vendor and Purchaser — Specific Performance — Failure to Malte Further Payment at Time Specified — Excusable Oversight ré ' Date, Readiness, Willingness, to Pay, 'Effect.
    Under a realty sale contract making time of essence thereof, where purchaser had paid part of purchase price under provisions to the effect that failure to make any future payments when due should mature all' payments ánd' the 'contract should be forfeitable at vendor’s option, held, that the fact that, through misapprehension of the date on which a certain payment fell due (vendee having confused date of such payment with a date a month later when possession of the land was’ to be given him), vendee failed to make such payment on due date, would-not defeat his right' to specific performance; he having been notified the next day'in writing of his default and that contract .was cancelled, immediately went to vendors and asked to be relieved of his default, and to he allowed to make payment, and, upon being refused, deposited the money in bank in their name and notified them thereof, he being willing and able to perform according to contract; he having intended at all times .to -pay balance due -per contract, and his .excuse for failure, to pay on due date being plausible; that vendors’ refusal to close the sale was without merit; they being obligated to furnish warranty deed and abstract of title as 'a •condition to such payment and not having done so or offered to do so; it further appearing that prior to said due date one of vendors, in. response to a statement of vendee’s son that he did not believe his father understood that payment was due on said date, etc., and that he would telephone his father about the matter, replied that a few days would make no difference; and the message not being sent.
    Appeal from Circuit Court, Gregory County. Hion. William Williamson, Judge.
    Action by Christian Beiler, against Leonard E. Taylor and another, for specific performance oif a realty sale contract. Eromi a judgment for plaintiff, and from, an order denying a new trial, defendants appeal.
    Affirmed.
    
      N. D. Burch, and B. O. Patterson, for Appellants-.
    
      W. I. Hooper, for Respondent.
    Appellants submitted that: A vendor may be -p re eluded ■from declaring a forfeiture by his--own-'statements made to and acted upon by the vendee, citing; Warvelle on Vendors, Vol. 2, 2d Ed. p. 961; fouit that the statements- claimed to have been made in ’this action were not made to nor acted1 -upon- by' the vendee.
    Respondent -cited: Misslolur-i River, Et. S. & G. 'R. Go. v. Biiickley, 21 Earn., 207; 36 Cyc./page 716; Shipment v. Cummings, 19 N. Y. 'Sup)p., 974; Pi-er v. Lee, 14 S'. Dp 600.
   BOLLEY, J.

This is an action to 'enforce -specific performance of -a contract to convey a tract -of -land in Gregory oounty. The contract was entered -init» on the 23d 'day of June, 1916. The purchase price of the land was to be $6,000. Of this amount $1,000 was to be, and) was, paid when the contract was executed, $2,500 was to be paid ion the 1st day oif- the following November, and the -balance Whs to be paid in three payments) — -one, two, and three years -later. All -of the deferred payments were to draw interest from the date of the contract until paid. Ujp'oo the payment -of th-e said, sum of $2,500 cm the i.st day oif 'NjoVembcr, 1916, the grantors were to furnish the grantee an abstract of title and convey. the ¡property by warranty deed, and' this grantee was .given 'the option to pay all of the balance of the purchase -money ion that, date, 'oir to give tíie.grantors a mortgage to secure !th-e 'deferred payments. Possession of the land was to be -delivered! to plaintiff on the 1st day -oif December, 1916. The contract ipirlovid-ed “that the time and payment shall ¡be an essential' part of tire contract.” The contract contained1 the further provision that, if the grantee flailed to make any of the payments when due, “the whole of said payment and .interest shall become immediately d'ue and payable, and this contract shall, at the option of the parties of the first part, be forfeited and determined, * * * and’ the party of the saclcind part shall forfeit all payments made by them- 'on this contract, * * * and such payments * * * shall, be retained! by the said .parties of the first part in full satisfaction- and1 in liquidation of all damiaige-s by than sustained1. * * *” The grantee failed to make the payment -clue on the i.st day of November, 1916, and, on the following dlay, dle'fendante served written notice upon him that, because of his failure to make such- payment, .defendants had* cancelled the contract and1 forfeited1 the $1,000 that had been- paid. Plaintiff lived at Battle Creek, Neb., a distance of about 100 miles from the land described in the contract, -and- upon which land1 defendants were then living. Utpon receipt of -the said notice, plaintiff iwent immediately to¡ d'efendiants, and asked to be relieved of his. default, and to be allowed' to make said payment as provided for 'by the Contract, and, upon defendants’ refusal, .plaintiff deposited said money in a- bank in defendants’ name, andi notified' them thereof.

Plaintiff’s excuse .for not having made said payment on the d)ay fixed .by the .contract was that he forgot about it. fie is a ■Sw'isis, and unable to read or write tine English language, and testified that he remembered that he was to. have possession of the premises on the xst day of December, 1916, and, in some way, gained the dmlpression that that was the date when said payment was to be made.

The trial court made .findings of fact and conclusions of law fully sustaining .plaintiff’s contention;, and entered judgment accordingly. Er-om such judgment and an order overruling their motion for a new trial, -defendants appeal.

The appeal is utterly without merit. There i-s no -doubt that respondent intended, at all times, to pay the balance due- under the contract and complete 'thie purchase. Neither -is th-ere any dio-ubt that he wa-s able and wiilling — -even anxious' — to complete s-uch purchase. Has excuse for not having made the said payment on tine very d'ay- it was -dhie is a plausible one. His confusión ioif the date when he was to have possession of the land does! not seem to us to be at ialli surprising, in view of all the circumstances. Under the terms of the contract, appellants were required to furnish earn abstract off titile, and to execute a warranty deed conveying the land to respondent on or before the ist day olf November, and this ¡was to be done, or tendered;, before they were entitled to the payment that was due on ¡that date. This they ¡do not -pretend to have done. Had they made and tendered such deed to respondent and demanded payment, and had -respondent refused to malee the same, appellants would have had some excuse for declaring a forfeiture.

Another circumstance that slhiolwS the bad faith- olf appellants is the fact that, a few days prior to November i, 1916, respondent's son - had a .conversation- with on-e of appellants re-latiye to the contract in question and the date on which said payment w;as to become -due. In the course o-f s'aid1 -conversation, respondent's son said, in subs-tan-ce, that he -did not believe hi-s father understood that said1 payment was due -o-n the said ist day -of November, or that he w-as planning to- -make such- payment on that -date, but that he (-the son) -would telephone to his father about the matter, hot which said appellant replied- that a few days would not make any difference, anid the message -was not sent. Judging from the conduct of the respondent after he was reminded that he was -in default, there is no doubt th-ait, had the telephone message been sent, as suggested1 by hiis sloni, respondent -would •have made the payment o-n the date it fell due.

Under all the facts -as they appear from the record in this case, appellants! have -no standing whatever in- a ¡court of justice. In fact there is sUidh a total absence off merit -in appellant’s case that we are satisfied the .appeal was taken for the sole purpose of delaying respondent in completing thla purchase and acquiring possession! off the land

The judgment and order appealed1 -from; are affirmed1.  