Henley v. Engler

176 S.W. 330, 118 Ark. 283, 1915 Ark. LEXIS 316

• Court: Supreme Court of Arkansas
• Decided: May 3, 1915
• Status: Published

Opinion

Hart, J.,

(after stating the facts). Professor Pomeroy, in discussing the question of specific performance, ■says that the doctrine is fundamental that either of the parties seeking specific performance against the other must show as a condition precedent to his obtaining the remedy that he has ¡done or off ered to do, or is then ready and willing to do, all the essential and material acts required of him by the agreement at the time of commencing suit. Pomeroy’s Equity Jurisprudence, vol. 6, par. 805.

In paragraph 809, following, he .says that where the stipulations are mutual 'and dependent — that is, where the deed is to he delivered upon payment of the price — an actual tender and demand by one party is necessary to put the other in default and to cut off bis right to treat the contract as still subsisting.

(1) In the case before us there was an executory contract for the sale of the land, and the chancellor has found that the failure of the defendants to deliver the deed was due solely to the failure of the plaintiff to pay the 'Stipulated purchase price according to the .terms of his agreement, and on that account refused specific performance of the contract. "We are of the opinion that the decision of the chancellor was correct. The decision is based upon the maxim that he who seeks equity must do equity, and this applies with peculiar force in the case of specific performance of a contract to sell lands. The party who seeks the specific execution of the contract is bound to show a substantial performance or readiness and offer to perform on .his part of iall that is required of him by the contract. Failure in any material respect offers a full defense to the suit.

(2) According to the testimony of the defendants, the plaintiff on the 12th day of December, the date on which the deed was placed with the Bank of Brinkley for delivery, said that he had already examined the abstract of title and found it all right.

According to the testimony of the plaintiff himself, his attorney examined the abstract within a month after this time. So, according to his own statement, the abstract was examined by the middle of January. Still, he failed to make the cash payment of $150 as required by the terms of the contract. The agreement between the parties contemplated that this cash payment should be made in a reasonable time .after the deed was placed in the bank for delivery. The plaintiff failed to make the payment according to the terms of the contract and the defendant upon 'his return to Brinkley on the 20th of February, 1914, again demanded payment of the plaintiff and upon the plaintiff’s failure to pay him .declared the contract rescinded.

The plaintiff failed to perform the conditions imposed upon him Iby the contract, and his failure to do so was a defense to his action for specific per-formánoe. The decree will he affirmed.