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part, at any time after the violation or nonfulfillment of any of the said agreements on the part of the said party of the second part, to sell and convey the said land, or any part thereof, to any other person whomsoever; and said party of the first part shall not be liable in any way, nor to any person, to refund any part of the money which he may have received on this contract, nor for any damages on account of such sale."
The fourth (third annual) payment of $50 was due November 30, 1904. It is charged in the bill that the vendee on December 1, 1904, offered to pay the vendor $106, if he would then, under the agreement, execute and deliver a deed of the premises, and tendered the vendor $106, which sum the vendor refused, unless the vendee would accept a quitclaim deed of the premises, which he would not do; that thereafter the vendee was ready and always willing to pay the vendor $106 and to perform the agreement on his part whenever the vendor would execute and deliver a good and sufficient deed of the premises. It is charged that on March 4, 1907, the vendee conveyed his interest in the contract and land to complainant, who thereafter gave the vendor notice, in writing, of the acquirement of such interest and forbade the cutting of timber on the land. The notice also contains the statement that an agent of complainant, named in the notice, is authorized to take possession of the land, to tender the balance due on the contract, and to receive a deed of the premises, and that if a conveyance is refused a bill will be filed for specific performance of the contract. It is charged that the contract is in force. The bill is verified. It was answered, a replication was filed, and a hearing was had in open court. The bill was dismissed.
The proofs do not sustain the case made by the bill. We find that the vendee never tendered to the vendor $106, or any other sum, for a conveyance, and the vendor never required or proposed that the vendee should accept a quitclaim deed of the premises. On the contrary, the vendee proposed in November, or December, 1904, to pay
the balance unpaid on the contract and take a deed. The vendor assented, gave orders to have an abstract and deed of the land prepared, when he was told by the vendee that his title was infirm and that he would not accept a deed from him. Thereupon the vendor canceled his order for the preparation of a deed, and desired the vendee to pay him the sum which, by the terms of the contract, was then due and unpaid. This the vendee refused to do, saying he would put no more money into the place. Since then, neither he nor any one for him, or in his right, has paid or tendered any portion of the purchase money. The vendor, as he told the vendee he would do, re-entered peaceably and has been and is now in possession. Of the re-entry and removal of some of his property, the vendee had early notice.
Considerable is said in the briefs about the state of the vendor's title to the land. The recitals in an abstract of title were read into the record, and it appears to be agreed that they correctly indicate the condition of the record title. It is asserted in the brief for the defendant (vendor) that the land had been occupied for 22 years by vendor and his grantors under tax titles. We are referred to no testimony supporting the assertion. The title of the vendor was acquired by quitclaim deed, dated January 29, 1900. His grantor's title originated in a deed given by the auditor general in 1882, for taxes for the years 18751879 inclusive. There are other tax titles, as well as the original or government title, outstanding.
Whatever support there may have been for the vendee's assertion that the vendor had not good title, and however the real or apparent condition of the title may have excused the refusal of the vendee to make further payments, and denied to the vendor the right to declare or work a forfeiture, these questions are not raised by the pleadings. The bill does not attack the title of the vendor and no right of the vendee is predicated on a want of title. A single reason is given in the bill for the refusal to make payments. That reason has no support in fact. The
case stands, then, as if the vendee had, without excuse, refused to perform the contract, declaring, also, that he should pay no more. The consequences of such a default are declared in the contract to be forfeiture of all rights thereunder. If it is doubtful whether by the terms of the contract alone such default ipso facto forfeited the vendee's rights, there can be no doubt that the vendor, with notice to the vendee, accomplished both an entry and forfeiture before any assignment was made by the vendee to complainant. We are of opinion, therefore, that the circuit court rightly refused complainant relief.
The decree is affirmed, with costs to appellee.
BIRD, C. J., and HOOKER, MOORE, and STONE, JJ., concurred.
VOLLI v. WIRTH.
LIMITATION OF ACTIONS-Demand-ASSUMPSIT.
The statute of limitations bars an action of assumpsit for money loaned on interest, in separate items, of which the last was advanced more than seven years before any demand was made; the transaction amounting to a loan payable within a reasonable time after demand.
Error to Wayne; Donovan, J. Submitted October 28, 1910. (Docket No. 136.) Decided December 22, 1910.
Assumpsit in justice's court by Frederick Volli against Frederick Wirth, for money loaned. Defendant appealed to the circuit court. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error. Affirmed.
Lehman, Riggs & Lehman, for appellant.
This action was begun in justice's court, where the plaintiff declared, orally, upon the common counts in assumpsit and filed a bill of particulars, the last item of which was money delivered to defendant December 11, 1898. The plea was the general issue, with notice that the cause of action was barred by the statute of limitations. In the circuit court the cause came on to be tried October 22, 1909, and counsel for plaintiff made an opening statement to the jury. This statement, in substance and effect, was that plaintiff came to this country from Germany in 1889 and became acquainted with the defendant
"I think during the first or second year he was in this country, at any rate, within the first years he was in this country, he was out of employment, and not feeling very well, and he went to Mr. Wirth's and stayed there, and made it his home, and while there he let Mr. Wirth have $40 dollars, without any statement about the interest. He just let him have it to take care of, and upon the express agreement that when he wanted the money, he should tell Mr. Wirth that he wanted it, and then Mr. Wirth, after being told that he wanted it, was to have a reasonable time to raise the money, and not be crowded. And the thing ran along a year or such a matter, and he let him have $12 more on the same arrangement-nothing said about interest-just let him have it to take care of it; and it was stated when he wanted it he would pay him the two sums together. And about a year after that, $18; and about a year after that, and, I think, the latter part of the year 1898, Mr. Volli had some money in the City Savings Bank, and Mr. Wirth wanted to use some money, and he spoke to him about it, and he either drew the whole sum, or the principal portion of it, from the bank and gave it to him, again upon the identical same understanding he had given him the other money. He was to take care of it for him and use it, and take care of it, and nothing said about the interest, and pay him back when he wanted it, and he let him have $180 at that time. * * * And the thing ran along until about November, 1905. Mr. Volli wanted
to get his money together, and he asked Mr. Jacob Kuester, a carpenter living upon Medbury avenue, 1050 Medbury, a man whose acquaintance he had made, and a friend of his, where he sometimes stayed when he had no particular work, and he took him out and Mrs. Kuester fixed up in German a paper, an acknowledgment showing what sums of money he had let him have up to that time. And he went out then and told him he would either like to have the money or else sign an acknowledgment, because he could not tell what might happen, and Mr. Wirth says: 'You give me another year, and come again, and I will pay you the whole sum,' and he went away again, and he did not make further demand upon him at that time, until ahout two years after. And he *** went out there a year ago last summer, shortly before these suits were started, and he again asked him to pay the money, or give some obligation. He says: 'You never come out here unless you bring a couple of loafers with you, and I want you to get off my farm,' and he drove them off the place. And Mr. Volli then brought suit to recover his money, and you all understand that there is a certain jurisdiction in the justice court; so he brought suit for these four sums, $40, $12, $18, and $180, and that is the suit that is now before you for determination."
At the conclusion of this statement, the attorney for defendant submitted to the court whether, assuming the facts stated to be proven, plaintiff was entitled to recover. In answer to questions by the court, the attorney for the plaintiff stated that no receipt for the money was given, no partial payment ever made, no note given, the defendant had not been absent from the State, but had lived all the time within four or five miles of the plaintiff, plaintiff had not been confined or insane. After an argument, during which plaintiff's attorney was permitted to offer in evidence a paper writing, referred to in the opening statement of counsel, which was prepared for the purpose of obtaining an acknowledgment of the debt from the defendant, the court directed a verdict for the defendant. This writing, literally translated, reads:
"I have of Mr. Frederick Volli a capital borrowed and