Kinney v. Schlussel

¶1 Concurring.—In my opinion the contract in question is mutually binding in that plaintiff was bound to buy and defendant was obliged to sell. If defendant had tendered a deed and abstract disclosing a marketable title, plaintiff would have been compelled to pay the balance of the purchase price. Under such circumstances he could not have arbitrarily nor capriciously refused to approve the title. *391 Neither should plaintiff be put in default for refusal to approve a title which, when submitted to him, was defective. When plaintiff, however, entered upon the land of defendant for the purpose of constructing and laying out his logging road, the entire balance on said purchase price, under the terms of the contract, became immediately due and payable. Plaintiff by so doing in effect said, “I am willing to approve the title as it stands.” Plaintiff is not entitled to invoke the equitable remedy of specific performance for the reason he has not tendered the amount due on the purchase price. He has not shown performance of the contract on his part. To demand specific performance as stated in Pomeroy’s Equity Jurisprudence, fourth edition, Section 1408, the party seeking such relief must show himself to have been “ready, desirous, prompt, and eager” to perform. When plaintiff entered upon the land to construct his logging road, he knew the balance of the purchase price was immediately due and payable, yet at this late date he has failed to make such tender. He cannot thus trifle with his contract and invoke the aid of equity to compel specific performance. If this cause were dismissed without prejudice and plaintiff should commence another suit to obtain the same relief, it ought, for the reason above stated, to be dismissed. I therefore concur in the result as announced by Mr. Justice Rand.