Thomas v. Seaman ( 1915 )

Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Vendor and purchaser, § 87^*—what acts sufficient to show rescission. In an action to recover back money paid under a contract to purchase land, where the evidence shows that defendants failed to deliver a deed and abstract at the time of the payment of an instalment as provided by the contract, and plaintiff, about thirteen months after the time for delivery, notified defendants that if performance was not made within three days suit would be brought, and later, upon defendants still failing to perform, abandoned the land, such notice and abandonment amounted to a valid rescission of the contract, the only obligation between the parties at this time being money due and owing from defendants to plaintiff. 3. Vendor and purchaser, § 106^*—when right to rescind not waived. In an action to recover back money paid under a contract where plaintiff claims a rescission, letters written after the acts relied on to show a rescission expressing a willingness to purchase the property if defendants gave or allowed compensation for damages resulting from their delay in performing, held insufficient to prove either a waiver of reeission or a want of intention to rescind, it nowhere appearing that the amount of compensation to be paid was ever agreed on. 4. Vendor and purchaser, § 106^*—when evidence insufficient to show retraction of rescission. In an action to recover back money paid under a contract to purchase land where plaintiff had effectively rescinded, and where defendants were urging plaintiff to come to some agreement as to the controversy, the fact that plaintiff discussed with third persons an exchange of the property in question for property belonging to them, held not sufficient to show a waiver of the rescission, as the terms which plaintiff might be willing to make with defendants might depend on what disposition he could make of it. 5. Customs and usages, § 16^*—what effect of custom, as to actual delivery of stock certificates. In an action to recover back money paid under a contract to purchase land and stock of a Colorado ditch corporation, the fact that no certificates of the stock were ever tendered, held immaterial where it appears that both by the contract and the method of handling such matters in Colorado no actual delivery of stock was contemplated by the parties. 6. Vendor and purchaser, § 123^*—when vendor required to furnish abstract and deed in reasonable time. Where a contract to purchase land provides that the vendee shall be entitled to an abstract of title and a deed on making certain payments, such abstract and deed must be furnished within a reasonable time after such payments were made. 7. Vendor and purchaser, § 123^*—what delay in furnishing abstract and deed unreasonable. Where a contract to sell land is construed to require grantors to furnish an abstract of title and deed within a reasonable time after certain payments were made, a delay of one year and eight months in making tender of such deed and abstract held unreasonable.