I dissent. The escrow party based its refusal to carry out the escrow solely upon the ground that the title company would not furnish the certificate the contract required to be furnished by the seller. It cannot be doubted that this provision was solely for the benefit of the purchaser Carlsen. Admittedly Carlsen repeatedly offered to waive it — not only this, but he repeatedly offered to sign and execute any kind of a release or acquittance the escrow party might see fit to require. Admittedly the purchaser performed every covenant on his part *Page 308 to be kept and performed under the contract, including payment to said escrow-holder of every dollar of the escrow price for said property. The escrow party did not at any time complain that such waiver and offer of release was parol. This estopped it to assert that said waiver was ineffectual because it was oral.
The escrow agreement contained the following clause: "No rescission of this escrow or modification of its terms or any notice or demand shall be of any effect without joint consent in writing, subscribed by the undersigned, and assented to by the bank." A literal interpretation of this paragraph is made the basis of the conclusion announced in the majority opinion. It may well be doubted whether a waiver by one party to a contract of a covenant made expressly and solely for his benefit is indeed a modification of the terms of an escrow. To say that a paragraph such as this is binding literally upon the escrow-holder is to say that the escrow agreement has no efficacy whatsoever. Under such a construction one of the parties to the contract could be the escrow-holder. Indeed, under this construction one party to a contract could by his own wilful act defeat the performance on his part of his own solemn covenant.
The necessary deduction from the majority opinion is a principle similar to the case where a debtor gave his creditor a promissory note payable when convenient with the proviso that if not so paid the note was to be null and void.
I can see no substance whatever in the material used in making up the conclusion of the court in this case. The question is important and an erroneous pronouncement will be far-reaching in its ill effects.
The judgment of the court below should be reversed.
Rehearing denied.
Seawell, J., and Preston, J., dissented. *Page 309