Pirtle v. Fersenthal Land & Townsite Co. , 96 Ark. 14 ( 1910 )

Wood, J.,

(after stating the facts). The written instrument in evidence witnessed an executory contract upon the part of appellee to sell appellant certain lots to be selected by lot, upon the payment of the purchase money in the -manner specified. The provision in the contract “that if the purchaser, after .personal examination by him, is not satisfied with the lot drawn, -the full amount paid will be refunded on the day of allotment,” is -for the benefit of the purchaser, and shows that the contract of purchase on -the part of appellant was not to be complete or executed until he had an -opportunity for -personal examination of the lots drawn and was satisfied with them. If, after having such opportunity, he was dissatisfied, there was no contract of purchase, and the money he had deposited in the mean time was due him. The relation of debtor and creditor was created by the terms of the -contract between appellee and appellant as to the money deposited by the latter with the former, the moment appellant was not satisfied with the lots, and the contract clearly contemplated that, if the purchaser was dissatisfied, the money he had paid would be refunded to. him. Appellee did not specify that the time the money was to be refunded — the dav of allotment — was to be of the essence of the contract. There is nothing in the contract itself or in the evidence to show 'that the time for refunding the money was to be of the essence of the contract. On the contrary, the evidence shows that appellee did not regard time of the essence. For it continued the time when the money might be refunded until after the day of allotment.

This court in Atkins v. Rison, 25 Ark. 138, through Judge Compton, said: “As a general rule, time is not deemed, in equity, to be of the essence of the contract unless the parties have expressly so treated it, or it necessarily results from the nature and circumstances of the contract (2 Story’s Equity, § 776); and, even in cases where it clearly appears to have been the intention of the parties to make time of the essence of the contract, equity will relieve the party in default from a forfeiture if he shows a sufficient excuse for nonperformance at the time specified.”

But, even if time were of the essence, equity, under the evidence in this record, would not permit appellee to declare the right of appellant to demand a return of the money on the day of allotment forfeited. It would be unjust and a fraud upon the right of appellant for appellee to refuse to refund him his money because he did not demand its return on the day of allotment, when appellee had made no adequate arrangement by which appellant could make such demand.

Appellant exercised the utmost diligence and persistency in his efforts to make such demand on that day, but the plan which appellee had provided by which the money could be demanded by and refunded to dissatisfied purchasers on the day of allotment was wholly insufficient. It really amounted to a denial by appellee of any opportunity to appellant to express on the day of allotment his dissatisfaction and to demand the return of the money he had paid appellee.

The evidence showed that it would -have taken at least four places like the one provided to have given the dissatisfied throng of purchasers an opportunity to demand the return of their money. The conduct of appellee with reference to the manner and methods provided for refunding the money to appellant was such as to excuse appellant from failing to make a demand for his money on the day of allotment, even if that day was of the essence of the contract. Equity will not declare a forfeiture under the circumstances disclosed by the evidence in this case.

The court erred in not rendering judgment for appellant for the full amount claimed in his complaint. The judgment is therefore reversed, and the cause is remanded with directions to cancel the deed of appellee to appellant and to enter judgment for appellant against appellee in the sum of $275, with interest at six per cent, per annum from July 5, 1905, till the day the judgment herein directed is entered.