{ "id": 1660042, "name": "Terrell v. Gregory", "name_abbreviation": "Terrell v. Gregory", "decision_date": "1952-06-09", "docket_number": "4-9784", "first_page": "713", "last_page": "717", "citations": [ { "type": "official", "cite": "220 Ark. 713" }, { "type": "parallel", "cite": "249 S.W.2d 560" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "216 Ark. 632", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1614306 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/216/0632-01" ] }, { "cite": "26 S. W. 2d 89", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "181 Ark. 339", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721271 ], "opinion_index": 0, "case_paths": [ "/ark/181/0339-01" ] }, { "cite": "107 A. L. R. 380", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "128 Am. St. Rep. 40", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "89 S. W. 1047", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "76 Ark. 578", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1500972 ], "opinion_index": 0, "case_paths": [ "/ark/76/0578-01" ] }, { "cite": "198 Ark. 187", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1459766 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/198/0187-01" ] }, { "cite": "113 S. W. 800", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 0 }, { "cite": "87 Ark. 593", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519152 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/87/0593-01" ] } ], "analysis": { "cardinality": 417, "char_count": 6925, "ocr_confidence": 0.516, "pagerank": { "raw": 5.061447019797991e-08, "percentile": 0.31785115657322105 }, "sha256": "07ab64dacc460c2166ccb754c10521b6c2751c78171e8d5933c65a0cd9070535", "simhash": "1:88b1ffe4921888f5", "word_count": 1207 }, "last_updated": "2023-07-14T17:18:21.188385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [], "opinions": [ { "text": "Terrell filed suit against Gregory, seeking specific performance. The complaint alleged: (a) that by written contract of January 1, 1949, Gregory agreed to sell Terrell certain real estate, for a total price of $1,672.05; (b) that Terrell paid Gregory $980.08 in cash, and executed a note for the balance of $691.97, and interest; (c) that at various times the note was renewed, so that maturity was advanced to July 21, 1950; and (d) that on February 16,1951, Gregory declared the contract cancelled for nonpayment of the note, and returned the unpaid note to Terrell. Terrell paid $711.97 into the registry of the court, and prayed that Gregory be required to execute a deed to Terrell.\nIn his answer, Gregory (a) admitted the execution of the contract and note; (b) made the contract a part of his answer; (c) pleaded that Terrell had failed to pay the note when due on July 21, 1950; and (d) pleaded Gregory\u2019s right to declare the contract forfeited as he did. To Gregory\u2019s answer, Terrell filed a demurrer, which stated that the answer \u201cdoes not state sufficient facts to constitute a defense to this action.\u201d When the Chancery Court overruled the demurrer, Terrell refused to plead further or offer proof. Thereupon, decree was entered, dismissing Terrell\u2019s complaint; and this appeal challenges the correctness of the said decree.\nWe hold that the decree was correct. The contract gave Gregory the right to declare the contract forfeited for Terrell\u2019s failure to make the promised payments at the time specified. In the said Gregory-Terrell contract, Gregory and wife were called \u201cfirst parties,\u201d and Terrell was called \u201csecond party,\u201d and a portion of the contract recited:\n\u201c(3) Time being the essence of this contract, if party of the second part be in default, and if the parties of the first part be not in default hereunder, because of the uncertainty and difficulty of ascertaining actual damages by reason of such breach it is agreed that parties of the first part shall retain the cash payment made hereunder as liquidated damages, and this contract thenceforth he at an end, provided parties of the first part shall notify party of the second part of such default and shall return the note hereinabove mentioned evidencing deferred payment. \u2019 \u2019\nTerrell argues that Gregory had granted previous extensions, and that Terrell had a right to pay the note, even after Gregory had declared the default. But Terrell\u2019s argument overlooks the fact that the contract stated that\" time was of the essence. \u2019 \u2019 In all previous instances when Gregory had granted an extension, a written endorsement of such fact had been made on the contract; whereas when the maturity date of July 21, 1950, arrived, Terrell does not allege that he made any effort to gain a further extension. far as the pleadings delayed not only until Gregory declared the default, but also for nearly thirty days thereafter, before filing this suit. Souter v. Witt, 87 Ark. 593, 113 S. W. 800, 128 A. S. R. 40, is a case in many respects similar to the one at bar. In that case, as here, the contract contained a clause making time of the essence of the contract; and in that case, we upheld a forfeiture declared under the provisions of the contract.\nLikewise, in Wright v. Burlison, 198 Ark. 187, 128 S. W. 2d 238, we said:\n\u201cThe terms and provisions of the contract are clear and unambiguous. Time was specifically declared to be the essence of it, and upon the failure of appellant to comply with any of its terms the contract is declared to be null and void and all rights of the appellant forfeited under it. The undisputed evidence shows that she failed to pay the last two notes of $500 each falling due, the one October 1, 1929, and the other October 1, 1930, that she paid no taxes since 1930, and thereby we think forfeited her rights under the contract. In Carpenter v. Thornburn, 76 Ark. 578, 89 S. W. 1047, this court in quoting from Pomeroy\u2019s Equity Jurisprudence (4th Ed.), Yol. 1, \u00a7 455, said: \u2018It is well settled that when the.parties have so stipulated as to make the time of payment of the essence of tlie contract, within the view of equity as well as of the law, a court of equity cannot relieve a vendee who has made default.\u2019 See, also, Souter v. Witt, 87 Ark. 593, 113 S. W. 800, 128 Am. St. Rep. 40, 107 A. L. R. 380, and Comer v. Comer, 181 Ark. 339, 26 S. W. 2d 89.\u201d\nThe mere fact that Gregory had in previous instances extended the maturity date of the note, does not lead to the inevitable a matter of Gregory was bound to grant extensions past July 21; 1950. To say the least, Terrell, instead of standing on his demurrer, could have pleaded \u201cwaiver\u201d against the claimed forfeiture, and under such plea could have developed the facts as to whether from the previous conduct of the parties, Terrell had been lulled into an assurance of such extension. But Terrell did not elect to develop the facts: he demurred to Gregory\u2019s answer. When we read the paragraph of the contract making time of the essence and allowing Gregory to declare a of which was set out in Gregory\u2019s reach the inescapable conclusion that the answer stated facts which, if established, would be sufficient to constitute a defense. The effect of Terrell\u2019s demurrer was to admit as true all the facts well pleaded in Gregory\u2019s answer. West\u2019s Ark. Digest \u201cPleading,\u201d \u00a7 214 and \u00a7 217.\nTerrell insists that he was entitled to a reasonable time to make the payment, which time began after Gregory declared the default; and in support thereof, he cites Pomeroy\u2019s Equity Jurisprudence (5th Ed.), Yol. 4, \u00a7 1407 (a):\n\u201cWhere the stipulations are mutual and dependent, \u2014that is, where a deed is to be delivered upon payment of actual tender and demand by one party is necessary to put the other in default and to cut off his right to treat the contract as still subsisting. \u2019 \u2019\nBut the above quoted language from Pomeroy is not applicable to the situation existing in the case at bar. The language in Pomeroy, immediately following the above quoted language, is applicable to the situation. Such language is:\n\u201cTime the time of payment by the vendee is made essential and a fortiori where, if his payments are not made on the exact day named, the vendor may treat the contract as at an end, the vendee must make an actual tender of the price and a demand of the deed at a specified time.\u201d\nTime was of the essence of the contract here involved. Gregory declared the contract forfeited on Terrell\u2019s default of payment, and so notified Terrell, and returned the unpaid note to him. With all this admitted by Terrell\u2019s demurrer, the Chancery Court was correct in dismissing Terrell\u2019s suit for specific performance.\nAffirmed.\nTerrell died pending appeal, and the cause has been duly revived in the name of his administratrix and others.\nFor a more recent case involving a forfeiture clause in a real estate contract, see White v. Page, 216 Ark. 632, 226 S. W. 2d 973.", "type": "majority", "author": null } ], "attorneys": [], "corrections": "", "head_matter": "" }, "file_name": "0713-01", "first_page_order": 737, "last_page_order": 741 }