Heirs of Parry v. Tobacco Insurance

1 Cin. Sup. Ct. Rep. 251

• Court: Ohio Superior Court, Cincinnati
• Decided: April 15, 1871
• Status: Published

Opinion

Storer, J.,

in giving the opinion of the court, said:

This privilege of purchase secured the right to the lessee to compel a compliance by the lessor, leaving it optional entirely with the .lessee, but it must be admitted that the privilege was dependent upon the performance of the covenants to pay the annual rent and taxes. A refusal to discharge the obligation in this respect, which would-defeat the right of the lessee to hold during the term stipulated for the possession of the premises, must necessarily put an end to the right of purchase.

Under these circumstances can we decree a specific performance against the defendants? We need not refer to the established doctrine that we are not bound to grant in any case such a decree as a matter of course. We are to exercise a sound judicial discretion, taking into consideration the conduct of the parties, as well as the condition of the property to be affected.

On this point there has been no uncertainty as to the law in this State from the earliest reported case in our courts until the present time. Thus, it was held in Hutcheson v. McNutt, 1 Ohio, 14, decided nearly fifty years ago, “ that a party demanding specific performance must show that he is in no default, unless he can account for such default by special circumstances, and if it be unexplained, or if he can not perform the whole of the contract on his part, he can not compel the other side to perform what otherwise he might require him to do. And for the same reason, when he has trifled or shown a backwardness on his own part, equity will not aid him.”

If he omits to execute his part of the contract by the time appointed for the purpose, where there is no acquiescence in the omission on the part of the defendant, the court will not interfere.

In House, v. Beatty, 7 Ohio, pt. 2, p. 84, this rule was recognized, the court holding that after the lapse of a reasonable time for the performance by the plaintiff, from his omission of the duty required on his part by the contract, a relinquishment by him of the contract might be presumed. See State v. Baum, 6 Ohio, 383 ; Brown v. Haines, 12 Ohio, 1; Henry v. Conn, Ib. 193; Kirby v. Harrison, 2 Ohio St. 326; Campbell v. Hicks, 19 Ohio St. 433. The law as thus expounded has been the rule of all our judicial action, and is founded on the broadest equity, leaving the judge at last • to adapt it as the circumstances of each case may require its application.

Nor can there be any distinction in the operation of the rule between cases where the contract is> to purchase absolutely, and when a privilege or option only is secured to the lessee. In both the principle is the same; the vendee can not avail himself of his right unless he has been ready, willing, and able to pay the price agreed on, as he has stipulated to do, or to perform his contract whereby alone the lease is upheld. He can not, after default in either case, apply to the chancellor for relief. A breach of a covenant, which is a condition precedent to a claim by the covenantor against the covenantee, can not be disregarded when equity js invoked by him who is in default. He must do equity before he can ask it.

It has been urged that as there has been no judicial determination of a forfeiture of the lease for the default of the lessee in the payment of rent and taxes, the privilege of purchase secured by the lease has not been affected. But we can not appreciate the position thus assumed, for it is obvious the proposition is legally untenable. It is for the lessee’s default, whether caused by neglect or by a positive refusal to discharge his covenants, that we may refuse to grant relief; not whether a decree has been entered, which would ipso facto deprive the lessee of any privilege he might otherwise have enjoyed.

' On the whole case, it is apparent that the plaintiffs are not entitled to a decree. Their father voluntarily abancloned the premises leased in 1858, paid no rent or taxes, and subsequent to tbat timé, when rent was demanded, confessed his inability to pay. In tbe meantime tbe value of tbe property has m.ore than doubled, and not until it bad risen so rapidly in price, and after third parties bad acquired title, and a very short time before tbe lease expired, a tender was sought to be made. If tbe value of tbe premises bad fallen below tbe price to be paid, it is not probable any tender would have been made. Tbe lessor alone must then have borne the -loss; tbe lessee could not be compelled to make tbe purchase, as no legal objection existed upon him to do so.

To decide against tbe defendants would give an advantage to tbe plaintiffs tbat neither law nor equity should permit.

Tbe prayer for specific performance is denied, and tbe bill dismissed with costs.