Schwarting v. Schwarting , 1984 N.D. LEXIS 378 ( 1984 )

PEDERSON, Justice,

dissenting in part.

By requiring LaDonna to pay interest on the purchase price from the date LeRoy and Marie would have been entitled to receive the purchase price has the effect of making time “of the essence” for LaDonna but not for LeRoy and Marie.

In my view equity lies with LaDonna, who did not default. If there are other matters that shift the balance of the equities to LeRoy and Marie, the trial court should have pointed them out to us in findings of fact. Because it did not do that, the trial court’s decision is, on its face, an “abuse of discretion.”

Under the majority opinion vendors will be encouraged to use the courts to search for a way out when they make a bad bargain or merely have a change of heart because, even if they lose the challenge, they still get the agreed purchase price plus interest.

The fact that LaDonna was in possession and allowed to retain the profits is not an item of equity for or against her — if she had not been in possession she would have been entitled to an accounting. As this court concluded in Pillsbury v. J.B. Streeter, Jr., Co., 15 N.D. 174, 182, 107 N.W. 40, 43 (1906):

“The object to be aimed at by courts of equity ... is to place the party without fault as nearly as possible in the same condition as he would have been in had there been no default by the other party.” [Emphasis added.]

Placing the party with fault as nearly as possible in the same condition as he would have been in had there been no default rewards fault. That is not equity even if you call it a “rule.” “No one can take advantage of his own wrong.” Section 31-11-05(8), NDCC.

I do not agree with the majority opinion characterizing Nasset v. Houska, 48 N.D. 668, 186 N.W. 255 (1922) as a case where “the delay in closing the sale was caused by neither party.” That case indicates to me that the buyer (Martin) tendered less than the balance due. That is a default and the requirement that he pay interest was, of course, equitable.

The judgment should be reversed, at least for findings of fact on the question of balancing equities. If there are no equities favoring the defaulting seller, he is entitled to exactly what his contract calls for and no more.