Thompson v. Lincoln Nat. Life Ins. Co‪.‬

Vendor and Purchaser ? Sale of Real Property on Installments ? Option in Vendor to Declare Contract Terminated ? Waiver ? Notice of Intention to Declare Forfeiture ? When Essential to Right to Terminate ? Tender ? Appeal and Error ? Election of Remedy ? What Does not Constitute. Vendor and Purchaser ? Default in Payment of Installment of Purchase Price ? Option in Vendor to Declare Contract Terminated to be Exercised Promptly ? Waiver of Option. 1. Under a contract of sale of real property providing for payment in installments, which also makes time of its essence and provides that in case of default of payment of any installment the vendor shall have the option to declare the contract terminated, such option on the part of the vendor must be promptly exercised and if not so exercised the vendor will be presumed to have waived failure of timely payment and to regard the contract as still valid and existent. Same ? Default of Purchaser in Making Payment ? Option in Vendor to Declare Contract Terminated ? Notice of Intention to Terminate Contract Essential to Exercise of Option. 2. Where a contract of the above nature provides that before the vendor may declare it terminated for failure of the vendee to make prompt payment of any installment due thereunder, he must give the vendee a thirty-day notice of his intention to terminate it, the giving of such notice is essential to the exercise of the option for its termination. Same ? Case at Bar ? Failure on Part of Vendor to Give Notice of Intention to Terminate Contract Results in Contract Remaining in Force Notwithstanding Default of Vendee. 3. Complaint in an action by the personal representative of the deceased vendee for damages for breach of a contract of sale of real property by the vendor, brought on the theory that while the contract declared that time should be of the essence thereof, and that upon failure of vendee to make payment of any of the installments due, the vendor should have the option of declaring the contract forfeited by giving the vendee a thirty-day notice of his intention to terminate it, and no such notice was given, the contract was still in force three years after the due date of the last installment, when plaintiff tendered payment thereof, which tender was improperly refused, held good as against a general demurrer. - Page 522 Same ? Tender ? Defect in Pleading as to Exact Amount of Tender ? When Immaterial. 4. Semble: It would seem, under the doctrine that "that is certain which can be made certain," that where objection is made as to the sufficiency of the pleading of a tender of the balance due under a contract of sale of real property, it failing to set out the amount tendered, the exact amount may be arrived at by a simple mathematical calculation by reference to the allegations of the complaint, the pleading should be deemed sufficient. Same ? Tender ? When Unnecessary ? Pleading. 5. Where the making of a tender would be useless act, as where the person to whom the money tendered is due in payment of an unpaid balance of the purchase price of real property, has put it out of his power to make the transfer of the property because of his conveyance of it to a third person, a tender is unnecessary to recovery of damages for breach of contract, and hence a pleading of the tender is also unnecessary. Appeal and Error ? What Does not Constitute Election of Remedy so as to Bar Appeal from Order Sustaining Demurrer to Complaint. 6. Contention that where plaintiff, after demurrer to his complaint is sustained, asks for and is granted additional time within which to file an amended complaint, he chooses his remedy, is bound by his election and may not thereafter stand on his original complaint and appeal to the supreme court from the order sustaining the demurrer, held not meritorious.