Wolf v. Great Falls Water Power & Townsite Co.

38 P. 115, 15 Mont. 49, 1894 Mont. LEXIS 90

• Court: Montana Supreme Court
• Decided: October 22, 1894
• Status: Published

Opinions

PembertoN, C. J.

— Upon the filing of the record of the case in this court the respondent moved this court to dismiss the appeal, upon the grounds that it appears that the judgment of the court was not entered in the proper book. It appears that the clerk of the lower court kept a book labeled “Judgment by the Court,” kept for the sole purpose of entering judgments by the court, and that the judgment in this case was not entered in this book, but it was entered in the “ Minute Book” of the court. It also appears from the record of the case that the court, on the seventeenth day of October, 1891, made and filed its findings, and decision, and judgment; that, on the twenty-seventh day of October, defendant filed its notice of intention to move for a new trial; that thereafter, on the fourth day of November, defendant excepted to the findings of the court, aud moved the court to correct certain defects therein; that on the eleventh day of November the court made and filed an amended finding, decision, and judgment, giving the defendant judgment for seventy-five dollars and thirty cents more than by the original findings and judgment. And, as the appeal is from the original judgment, the respondent contends it should be dismissed. If this appeal were from the judgment alone this last might be a serious question. But the appeal is also taken from the order of the court denying appellant’s motion for a new trial, and, as this appeal biings the whole case here, we do not think it should be dismissed for the reasons assigned by respondent. It appears also that the judgment of the court was rendered and entered, but entered in the “Minute Book,” instead of the book labeled “Judgment by the Court.” We do not think the judgment was invalid, especially between these parties, on that account, or that no appeal would lie therefrom.

There are a great many assignments of error in this record. The appellant contends and urges that the evidence shows that time was of the essence of the contract, and that the evidence shows that the plaintiff failed to comply with its terms in many material particulars, and has shown no excuse for not complying, and is therefore not entitled to specific performance. The court Fund that time was not of the essence of the contract. Whether the court erred in this finding or not— whether time was of the essence of the contract, as shown by the evidence and circumstances surrounding the case — we do not deem it necessary to decide in determining this case, while we confess that many of the facts and circumstances go far to support the theory that time was considered as of the essence of the contract by the parties at the time of its execution. At least, we think it cannot be insisted, under all the facts and circumstances, that time was not material. As we view it, the vital question in the case is this: Was the plaintiff guilty of such laches, under all the facts and circumstances, after being notified by the defendant company that it would not fuF fill its part of the contract, in bringing his suit, as to debar him of equitable relief? “Specific performance is not an absolute right. It rests in judicial discretion, exercised according to the principles of equity, and with reference to the facts of the case.” (4 Gen. Dig., U. S., 1710, and authorities cited. See, also, 2 Beach on Modern Equity Jurisprudence, § 566, and authorities cited.) In Knox v. Spratt, 23 Fla. 64, the court said: “ The bill shows no reason for this long delay. Although time is not of the essence of this contract, yet, if the complainant is not active and diligent in the assertion of his claim, and permits an unreasonable time to elapse, it will be presumed that he has acquiesced, and has abandoned any equitable right he might have had to enforce the contract. In the case under consideration the complainant waited two years and seven months, and he shows no reason why he delayed so long to file his bill. In Watson v. Reid, 1 Russ. & M. 236, the plaintiff, who was the vendor, did not file his bill for specific performance until about one year afterward. The bill was dismissed on one ground that the plaintiff had unreasonably delayed filing it. Iu the case of Gentry v. Rogers, 40 Ala. 442, the plaintiff', though notified two years before the time for performance that the defendant would not perform the contract, waited nine mouths after the time when the contract should have been performed before filing his bill. ‘In such cases, though time be not of the essence of the contract, a court of equity will not allow of a delay which would enable a party to take advantage of the turn of the market, and have the contract performed only in case it suits his interest.’ ” In Delavan v. Duncan, 49 N. Y. 485, the court say: “The contract was made November 6, 1862, for the sale of a house and lot in the city of New York for the price of five thousand five hundred dollars, to be paid on the 15th of the same month, or as soon thereafter as the title could be searched, not to exceed thirty days. The judge finds as facts that, early in December, 1862, about twenty days after making the agreement, the title to the property having been searched, the plaintiff said to the defendant that there were judgments recorded against him (describing such judgments), and requested him to have said liens removed, and stated" that he was then ready to fulfill his agreement; that defendaut said he could not or would not remove the liens. The action was not commenced until August, 1866. The inquiry is whether, upon these facts, the plaintiff was entitled to judgment for specific performance, and, if not, whether the evidence authorized the finding of such additional facts as would entitle him to such judgment. Fry on Specific Performance, section 730, a work of acknowledged authority, says: ‘ The court of chancery was at one time inclined to neglect all consideration of time in the specific performance of contracts for sale, not only as an original ingredient in them, but as affecting them by way of laches. But it is now clearly established that the delay of either party in not performing its terms- on his part, or in not prosecuting his right to the interference of the court by filing a bill, or, lastly, in not diligently prosecuting his suit, when instituted, may constitute such laches as will disentitle him to the aid of the court, and so amount, for the purpose of specific performance, to an abandonment on his part of the contract.’ Section 731 refers to the cases in which this .doctrine was established. Section 732 says: ‘The doctrine of the court thus established, therefore, is that laches on the part of the plaintiff, either in executing his part of the contract, or in applying to the court, will debar him from relief.’ ‘A party cannot call upon a court of equity for specific performance,’ said Lord Alvanley, ‘unless he has shown himself ready, desirous, prompt, and eager’; or, to use the language of Lord Cranworth, ‘specific performance is relief which this court will not give, unless in cases where the parties seeking it come as promptly as the nature of the case will permit.’ The cases cited by the author fully sustain his conclusions. (See, also, Marquis of Hertford v. Boore, 5 Ves. 719, and cases cited note b, p. 720; 1 Story’s Equity Jurisprudence, §§ 771, 781.) In Taylor v. Longworth, 14 Pet. 172, Judge Story, in giving the opinion of the court, at page 175, says: ‘Relief will be given to a party who seeks it, if he has not been grossly negligent, and comes within a reasonable time, although he has not complied with the strict terms of the contract. But in all such cases the court expects the party to make out a case free from all doubt, and to show that the relief which he asks is, under all the circumstances, equitable, and to account in a reasonable manner for his delay and apparent omission of his duty.’” In Gentry v. Rogers, 40 Ala. 442, in a case very similar1 to the one at bar, the court say: u But there is another consideration which militates against the case of complainant. If one of two parties concerned in a contract respecting lands gives the other notice that he does not hold himself bound to perform, and will not perform, the contract between them, and the other contracting party, to whom the notice is so given, makes no prompt assertion of his right to enforce the contract, equity will consider him as acquiescing in the notice, and abandoning any equitable right he might have had to enforce the performance of the contract, and will leave the parties to their remedies and liabilities at law. (2 White and Tudor’s Leading Cases in Equity, note to Seton v. Slade, pt. 2, p. 516; Guest v. Homfray, 5 Ves. 818; Heaphy v. Hill, 2 Sim. & St. 29; Watson v. Reid, 1 Russ. & M. 236; Walker v. Jeffreys, 1 Hare, 341.) Not deciding the question whether the rule thus laid down had application to the case of complainant before the time fixed for the complete performance of the contract, yet, with distinct and emphatic notice that the defendant would not hold himself bound to perform the contract between them, given two years before the period fixed for performance, he permitted about nine months to elapse from the latter period before he filed his bill to enforce performance; and this delay on his part is not accounted for, but left wholly unexplained. In Watson v. Reid, 1 Russ. & M. 236, the plaintiff, the vendor, having notice from the purchaser that the latter abandoned his contract, did not file his bill for specific performance until about one year afterward, and the bill was dismissed on the sole ground of unreasonable delay in filing it. In such cases, though time be not of the essence of the contract, a court of equity will not allow of a delay -which would enable a party to take advantage of the turn of the market, and have the contract performed only in case it suits his interest. The complainant in the case before us, by the delay in filing his bill, and by his failure to perform the acts required of him by the contract, did not evince that promptness and eagerness for a performance required at his hands to entitle him to invoke the urgent powers of a court of chancery to compel performance.” In Boston etc. R. R. Co. v. Bartlett, 10 Gray, 384, in a case involving lhe law of laches, the court say: “Thecontract for the sale of the laud was made in 1844. The plaintiffs per* formed their part of the contract on the 29th of May of the same year, and the defendants then distinctly and absolutely refused to perform it on their part. No bill was filed for more than three years after the final refusal of the defendants to perform the contract, and this long delay in applying for the enforcement of the contract is left by the plaintiffs entirely unexplained. These facts, of themselves, would make us hestitate to give the plaintiffs the equitable relief which they seek. (Walker v. Jeffreys, 1 Hare, 348, and cases cited; Rogers v. Saunders, 16 Me. 92; 33 Am. Dec. 635.) But there are other circumstances which tend to show that it would be inequitable to grant the relief asked for. The fact that the land which was the subject of the contract had greatly increased in value after the refusal to perform the contract, and before the filing of this bill, is entitled to some weight. (Holt v. Rogers, 8 Pet. 434.) .... Having thus, by their acts and laches for three years, induced the other party to suppose that they have abandoned this contract, it is too late to apply to this court to enforce it.” In this case it will be observed that, although the plaintiff had promptly performed his part of the contract of sale, the court refused specific performance on account of the failure to bring suit therefor for the period of three years. In Waterman on the Specific Performance of Contracts, section 473, the rule is thus stated: “ The doctrine is well settled that great delay of either party, unexplained, in performing the contract, or when he claims specific performance in filing his bill, or in prosecuting his suit after the bill is filed, constitutes such laches as to forbid the interference of a court of equity, and to amount to an abandonment of the contract on his part.” (See, also, cases cited in note.) Mr. Pomeroy, in his work on Equity Jurisprudence, volume 3, section 1408, states the doctrine thus: “Although time is not ordinarily essential, yet it is, as a general rule, material. In order that a default may not defeat a party’s remedy the delay which occasioned it must be explained and accounted for. The doctrine is fundamental that a party seeking the remedy of specific performance, and also the party who desires to maintain an objection founded upon the other’s laches, must show himself to have been ‘ready, desirous, prompt, and eager.’”

In the case at bar the plaintiff not only failed, as the evidence shows, to strictly comply with his part of the contract of sale, although he had ample reason to presume, from the feeling existing between the parties in relation to the matter, that a strict compliance would be required, but, after being notified by the defendant company that it would not perform its part of the contract, after his tender of the purchase price of the lot was refused, and after the defendant company had re-entered and taken possession of the premises in controversy, he waited for more than three years before commencing his suit for specific performance. This delay is not explained, or in any way attempted to be explained, or excused. In fact, it seems that no excuse for this delay existed. The plaintiff in his testimony uses this language: “I had several thousand dollars last fall, and had at all times the ability to get money.” The court finds that the object of the vendors in said contract, in requiring plaintiff to erect such a building on the lot, was to enhance the value of the property contiguous thereto, owned by defendant; thát the erection of such a building thereon would have such effect; and that plaintiff was aware of these facts. The lot in controversy is situate in the city of Great Falls. At the time the contract was sought to be enforced, Great Falls was a small, struggling village. At the time of the commencement of this suit — more than three years after the expiration of the contract — it had grown to be a flourishing young city. Neal estate had vastly increased in value, and its population had grown from hundreds into thousands. The circumstances and surroundings of the parties were different at the commencement of this suit from what they were at the date fixed for the comnletion of the contract sued on. Could the plaintiff lie by and wait for three years to see whether his contract was a good one, and, if so, ask a court of equity to enforce it, and, if a bad one, ignore and renounce it? We think not. The doctrine involved in this branch of the case is very elaborately discussed in Green v. Covillaud, 10 ; 70 Am. Dec. 725. (And see authorities cited in this case.) In the case just cited the court say: “In California, where such rapid and sudden fluctuations in the affairs and fortunes of men occurred as in all history is unexampled, and where the work of years was accomplished in months, it is impossible to hold that time, as an element of past contracts, should be measured by the standards which obtain in old and settled states, where every thing is comparatively stable and permanent; where capital is abundant, titles ascertained, and interest is low. The peculiar circumstances, showing the value of punctuality here, call for a corresponding rule, whereby the courts should exact it; and we conceive that it would be as unjust as impolitic and demoralizing to make new contracts for parties, by extending time they never intended to give, for it would be to encourage violation of engagements, and foster a spirit of reckless speculation.”

We think it the well-settled doctrine that a party suing for a specific performance of contract, in a court of equity, must show that he has been “ready, desirous, prompt, and eager” in complying with his part of the contract, or in filing his bill and prosecuting his suit for relief, in case of failure or refusal to fulfill on the part of his adversary, or show good and sufficient reason for his delay in so doing. In this case the plaintiff has not done so. In failing to do so we think the plaintiff has been guilty of such laches as to debar him of the right to the relief sought. But it is contended that the statute of limitations controls in such cases, and that, as a consequence, the plaintiff would not be guilty of fatal laches, if he has brought this suit within the time prescribed by the statute oí limitations. In 1 Beach on Modern Equity Jurisprudence, section 20, the rule is thus stated: “Ordinarily courts of equity adopt the time fixed by the statute of limitations in analogous cases as the period at the end of which they will conclude recovery in equity. And it is said that courts of equity act not so much in analogy as in obedience to statutes of limitation of legal actions, because, where the legal remedy is barred, the spirit of the statute bars the equitable remedy also. Though, on the equity side of the United States courts, the statute of limitations cannot be pleaded, the court may look to such statute for analogies in applying the doctrine of laches. But the rule that the statute furnishes an analogy is not inflexible, and its application will always depend upon the particular circumstances of the case. In some of the states there are statutes of limitation applicable to equitable actions, but it is held that the period of limitation of equitable actions fixed by the statute is not, where a purely equitable remedy is invoked, equivalent to a legislative direction that no period short of that time shall be a bar to relief in any case, or preclude the court from denying relief] in accordance with equitable principles, for unreasonable delay, although the full period fixed by the statute has not elapsed since the cause of action accrued.” (See, also, cases cited.) In Delavan v. Duncan, 49 N. Y. 488, the court say: “Under such circumstances the plaintiff had no equitable right to watch and wait during the period of the statute of limitations to avail himself of the benefit of the contract if advantageous to him, but absolved therefrom if otherwise.” In Calhoun v. Millard, 121 N. Y. 69, this question is fully discussed. This case was decided in 1890, and the court, in a unanimous opinion, say: “Courts of equity, it has been said, act not so much in analogy to as in obedience to statutes of limitation of legal actions, because where the legal remedy is barred the spirit of the statute bars the equitable remedy also. In the present case the cause of action for the cancellation of the bonds was not barred by the ten years statute applicable to equitable actions. But a period of nine years had elapsed, after the bonds were issued, before the commencement of the action. But we apprehend that the period of limitation of equitable actions fixed by the statute is not, where a purely equitable remedy is invoked, equivalent to a legislative direction that no period short of that time shall be a bar to relief in any case, or precludes the court from denying relief, in accordance with equitable principles, for unreasonable delay, although the full period of ten years has not elapsed since the cause of action accrued. The ten years’ limitation was primarily designed to shield defendants. (Buffalo etc. R. R. Co. v. Dudley, 14 N. Y. 352.) And it must be true that a court, in the exercise of its equitable jurisdiction, could not entertain or enforce a cause of action barred by the statute, and not within any exception, acting upon any general equitable considerations. But in enforcing purely equitable remedies, depending upon general equitable principles, unreasonable and inexcusable delay is an element in the plaintiff’s case- which a court of equity always takes into consideration in exercising its discretion to grant or refuse relief, and is not a mere collateral incident. Where there is a remedy at law whereby the plaintiff can prosecute or defend his legal right, the refusal of relief leaves the parties where they were. If there are special circumstances which may change the situation of the plaintiff to his injury, unless the equitable remedy is interposed, this fact may be considered. But the right of the court to deny relief, upon equitable grounds, for long delay, although short of the statute period of limitation, is in the nature of a defense, and is not, we think, taken away by the statute. There may be a well-founded distinction between the case of an application for an equitable remedy in aid of or to enforce a legal right not barred by the statute, and the case where an exclusively equitable remedy is sought, such as to restrain proceedings at law, or, upon the principle quia timet, to deprive an adversary of the muniment of his alleged legal right, which he inequitably retains. In cases of the latter class, long delay or acquiescence, although short of the statute period for the limitation of equitable actions, may be a ground for refusing relief. (Pomeroy’s Equity Jurisprudence, § 817.) The cancellation of securities is a purely equitable remedy, and cannot be claimed as an absolute right, nor is it applied for or awarded in aid of a legal right or title. . We conclude, therefore, that it was within the power of the court to dismiss the complaint, so far as relief was sought for a cancellation of the bonds, on the ground of delay in bringing the action. The circumstances justified the conclusion on this branch of the case.” (See, also, Reynolds v. Sumner, 126 Ill. 58; 9 Am. St. Rep. 523, and note, with authorities cited therein.)

It may be said that we have the code practice, in which actions of law and equity are merged; that we have but one form of action, either in law or equity. But does it follow, as a consequence, that the principles of equity jurisprudence, so long and everywhere in vogue, are abrogated? Is the rule that a party seeking the interference of a court of equity in the enforcement of a contract must show himself “ready, desirous, prompt, and eager,” which has become a maxim of equity jurisprudence, abrogated by the adoption of the code practice, the merging of law and equity into one tribunal, and providing for but one form of actions in law and equity? Shall it be said in this state that a party shows himself to be sufficiently “ready, desirous, prompt, and eager,” provided that, in strictly equitable cases, like the one at bar, he brings his suit within the period prescribed by the statute of limitations? And, if he brings his suit within the statutory period, will it be said that he is not, and cannot be, guilty of such laches as will debar his right to relief in strictly equity cases? New York is a code state. Her courts do not so hold, as will be seen by the cases quoted above. Nor do any of the authorities that we have been able to examine so hold. We do not think the position tenable. (Waterman on Specific Performance, 628; Hall v. Russell, 3 Saw. 506; Fed. Cas. No. 5943.)

In the consideration of this case we have deemed it unnecessary to treat as important the acts of defendant or the plaintiff occurring prior to the alleged accruing of his right of action, although the record and findings show that he failed to comply therewith in many important respects. We have confined the consideration to the question as to whether the plaintiff was guilty of inexcusable laches in commencing his suit for specific performance after he was ousted from the possession of the real estate in question, and knew that the defendant would not comply with the contract of sale thereof unless compelled so to do. The plaintiff, as the record shows, and as he admits in his testimony, waited for three and a half years after his cause of action accrued, without any excuse, before he instituted this suit. He offers no excuse for this delay. He testifies that he was able at all times to obtain money so to do if he had so desired. During all this unexplained and unexcused delay, the circumstances and conditions of the property were rapidly changing, and increasing in value. Under these facts and circumstances, we think it would be inequitable to decree specific performance of the contract in this case. The judgment of the lower court is therefore reversed, and the cause remanded for new trial.

Reversed.

De Witt, J., concurs.