Nelson v. Sanders , 123 Ala. 615 ( 1898 )

TYSON, J.

The defendant by his contract with the plaintiff, appellant, became bound by every term of the contract made betAveeñ Wilson and Law and appellant. He took their place, assumed every obligation imposed by it, and became entitled to all the benefits' conferred by it. This contract was clearly an agreement on the part of the defendant to purchase the lands described in it and bound him to pay the purchase money in the installments at the date fixed for their maturity, and bound the plaintiff to make to him a warranty deed to the lands upon the payment by him of the purchase money and a fulfillment by him of other obligations which he assumed under the contract not necessary here to notice in eas tenso.

After clearly fixing the status of the parties as vendor and vendee,, the contract contains the following provision : “But in case the said second parties shall fail to make the payments aforesaid, or any of them, punctually and upon the strict terms, and at the times above limited, and likewise to perform and complete all and each of the agreements and stipulations aforesaid, strictly and literally, without any failure or default, time being of the essence of this contract, this contract shall, from the date of such failure be null and void, and all rights and interests hereby' created or then existing in favor of the said second parties their heirs or assigns, or derived under this contract, shall utterly cease and determine, and the premises hereby contracted (for) shall revert to and revest in the said first party, his heirs or assigns, (without any declaration of forfeiture or act of re-entry, and without any other act by said first party to be performed and without any right in said second parties of reclamation or compensation for money paid or improvements made) as absolutely, fully and perfectly as if this contract had never been made. And it is hereby further covenanted and agreed by and between the parties hereto, that immediately upon the failure to pay any of the notes above described, all previous payments shall be forfeited to the party of the first part, and the relation of landlord and tenant shall arise between the parties thereto for one year, from January 1st immediately preceding the date of the default, and the said party of 'the second part shall pay rent at the rate of four bales of middling cotton to weigh 500 pounds, each, to be delivered in Troy, Ala., for occupying the premises from the said January 1st to the time of default, such rent to be1 due and collectable immediately upon such default.”

It is obvious that this provision was inserted in the contract for the benefit of Nelson, the vendor, in order that he might get some remuneration for the use of the lands by tbe purchaser in case he made default in the payment of his purchase money installment, .and as far as possible to hedge about his liability as mortgagee* and prevent the relation of mortgagor and mortgagee from existing, thus cutting off the rights of the purchaser to charge him with all moneys paid him under the contract of purchase as a credit upon his' debt. However, it is clear that it was the intention of Nelson and the defendant to secure to Nelson a rental for his lands, and give to him a remedy for its enforcement by creating the relation of landlord and tenant, in the event of a failure of the defendant to pay an installment for the year during which such default was made. That it was comper tent for the parties to make such a contract is not made a question in this case; and, indeed, it could not be successfulty made so. Similar contracts have been recognized and enforced b3r this court, and it is inconceivable how any good reason can be assigned against their validity and enforcement.

As to, whether or not an option was given to the defendant to elect to pay rent, instead of paying the purchase money installment when it fell due, it is unnecessary here to decide, since no such option was ever asserted by him. —Collins v. Whigam, 58 Ala. 438.

By the very terms of the contract it became void from the date of the failure of Sanders to pay the installment on November 1. 1896, as a contract of purchase and sale unless its breach was waived by Nelson. The payment of the installment by Sanders was a condition subsequent, capable only of being fulfilled by him, the noncompliance with which operated to destroy the contract as one of sale, but effectuated the obligation of Sanders to pay the stipulated rent if Nelson had insisted upon a breach of the condition. It appears, however, that Nelson did not, in 1896 or 1897, insist upon a breach of the contract as one of purchase and sale, but accepted from the defendant $154 on the 18th day of November, 1896, and $109.30 on the 1st day of January, 1898. ' The payment by the defendant of these sums and the acceptance of them by Nelson, was a recognition by each of them of the existing binding force of the contract as one of purchase and sale. Neither could for the year 1896 or 1897 ever contend against the consent of the other that Sanders was a tenant, or that Nelson was a landlord of these lands for those years. They had the right to waive a breach of the contract and to treat it as though no breach had ever occurred. This is all that their conduct amounted to. There was no legal or moral duty which required Nelson to insist upon the breach, nor would he have been allowed to do so after accepting the payment'of this money on the purchase. Nor was there any such duty upon the defendant, and clearly he would not he permitted to do so without paying the rent for the use of the lands for those years. So then on the 1st day of November, 1898, when the next installment fell due, the contract of purchase and sale being in full force and effect, the defendant again committing a breadi by his failure to pay, Nelson insisted upon the. breach and demanded of him the payment of the four bales of cotton as rent for the year 1898. This he had a right to do by the very terms of the contract, all along recognized by them as valid and binding.

The contention that because Nelson had waived the breaches committed by the defendant during the years 1896 and 1897, he thereby elected to treat him solely as a purchaser and was forever precluded from having any advantage under the alternative provision of the contract made for his benefit, is unsound. This was the status of the parties when the contract was entered into between them. So Nelson never had an opportunity to elect or .choose to treat him as a purchaser. Election necessarily involves a choice between two things. He could, it is true, have elected to treat the contract as at an end or to treat it as still subsisting. He chose the latter course, but by doing so, he did not repudiate one of the terms of the contract and adopt the other. On the contrary, when he chose, with the consent of the defendant, to treat the contract as still bidding, he elected to affirm the binding efficacy of every term it contained. It is clear the doctrine of election has no application to the facts of this case.

The affirmative charge should have been given for the plaintiff instead of for the defendant.

The judgment is reversed and the cause remanded.

Haralson, J., not sitting.