| Idaho | Jul 3, 1918
The appeal from the order denying appellants’ motion for a new trial is dismissed for the reason that the record does not contain a certificate showing what papers were submitted to the judge and by him used on the hearing of the motion. (Walsh v. Niess, 30 Idaho 325" court="Idaho" date_filed="1917-04-11" href="https://app.midpage.ai/document/walsh-v-niess-5170992?utm_source=webapp" opinion_id="5170992">30 Ida. 325, 164 Pac. 528, and cases therein cited; Bumpas v. Moore, (Ida.), 175 P. 339" court="Idaho" date_filed="1918-06-20" href="https://app.midpage.ai/document/bumpas-v-moore-5171199?utm_source=webapp" opinion_id="5171199">175 Pac. 339.
The complaint was defective in that it showed, without presenting any legal excuse therefor, that respondent’s tender of final payment was not made until after it fell due according to the terms of the contract. (Machold v. Farnan, 14 Idaho 258" court="Idaho" date_filed="1908-02-08" href="https://app.midpage.ai/document/machold-v-farnan-5169453?utm_source=webapp" opinion_id="5169453">14 Ida. 258, 94 Pac. 170; Prairie Dev. Co. v. Leiberg, 15 Idaho 379" court="Idaho" date_filed="1908-11-14" href="https://app.midpage.ai/document/prairie-development-co-v-leiberg-5169558?utm_source=webapp" opinion_id="5169558">15 Ida. 379, 98 Pac. 616; Papesh v. Wagnon, 29 Idaho 93" court="Idaho" date_filed="1916-05-03" href="https://app.midpage.ai/document/papesh-v-wagnon-5170848?utm_source=webapp" opinion_id="5170848">29 Ida. 93, 157 Pac. 775; Bennett v. Hyde, 92 Cal. 131" court="Cal." date_filed="1891-11-28" href="https://app.midpage.ai/document/bennett-v-hyde-5445628?utm_source=webapp" opinion_id="5445628">92 Cal. 131, 28 P. 104" court="Cal." date_filed="1891-11-27" href="https://app.midpage.ai/document/callahan-v-eel-river--eureka-railroad-5445618?utm_source=webapp" opinion_id="5445618">28 Pac. 104.)
Appellants answered and, without seeking to take advantage of the fact that respondent had apparently forfeited his rights, plead a general denial and a counterclaim wherein they alleged they had been at all times since making the contract, and still were, ready, willing, and able to convey the premises upon payment of the balance due from respondent. They tendered a warranty deed to the property and prayed for the enforcement of the contract and for judgment in the amount unpaid upon the purchase price. Thus the defect of the complaint, in failing to show that the contract was not forfeited when respondent made tender of final payment, was cured by the
Upon the trial respondent introduced evidence showing that on February 11, 1916, appellants notified him that unless final payment was made within five days thereafter, they would declare the contract forfeited; that on February 24, respondent informed appellants he was ready to pay the amount due upon tender to him of a conveyance of the property free from the encumbrances existing upon it; that on February 26, appellants again notified respondent that they would, within ten days therefrom, accept final payment and comply with their agreement; that on March 8, 1916, respondent tendered the amount due, calling attention to specific defects of title; and that thereupon appellants, not relying on a forfeiture by respondent, tendered him a deed to the property, which was refused for the reason that the defects of title still existed, which defects appellants, both then and thereafter, refused to correct.
The answer and the evidence thus disclosed that appellants, at no time, either before or during the trial, considered the agreement abrogated, and they are in no position to say that respondent cannot recover because of a loss of his rights through noncomplianee with its terms as to time of payment. (King v. Seebeck, 20 Idaho 223" court="Idaho" date_filed="1911-09-25" href="https://app.midpage.ai/document/king-v-seebeck-5169998?utm_source=webapp" opinion_id="5169998">20 Ida. 223, 118 Pac. 292.)
The court found that certain deeds and a judgment described in the complaint purporting to convey, and to affect, the title to portions of the property in question, were, with the exception of a sheriff’s deed based on the judgment, in existence and of record on December 26, 1915, at the time of appellants’ final refusal to perform. These findings are fully supported by the evidence and will not be disturbed. (Lambrix v, Frazier, 31 Idaho 382" court="Idaho" date_filed="1918-03-29" href="https://app.midpage.ai/document/lambrix-v-frazier-5171142?utm_source=webapp" opinion_id="5171142">31 Ida. 382, 171 Pac. 1134.) From the facts so found the court properly concluded that it was impossible for appellants to convey, according to their agreement, and that a breach, by them, of the covenants of the contract was thereby constituted. In fact appellants’ brief tacitly
It is immaterial that respondent may have had notice of the existence of the defects of appellants ’ title at the time the agreement was made. For the purposes of the contract it would have been sufficient if appellants were able to perform when their vendee had a right to call upon them to do so, and the court rightly considered their title as it stood at that time only. (Golden Valley Land & Cattle Co. v. Johnstone, 25 N.D. 148" court="N.D." date_filed="1913-03-18" href="https://app.midpage.ai/document/golden-valley-land--cattle-co-v-johnstone-6736916?utm_source=webapp" opinion_id="6736916">25 N. D. 148, 141 N. W. 76; Arentsen v, Moreland, 122 Wis. 167" court="Wis." date_filed="1904-06-10" href="https://app.midpage.ai/document/arentsen-v-moreland-4011168?utm_source=webapp" opinion_id="4011168">122 Wis. 167, 106 Am.. St. 951, 99 N.W. 790" court="Wis." date_filed="1904-06-10" href="https://app.midpage.ai/document/arentsen-v-moreland-4011168?utm_source=webapp" opinion_id="4011168">99 N. W. 790, 2 Ann. Cas. 628, 65 L. R. A. 973.)
It was alleged in the complaint that the sum of $211.18 was reasonable rent and interest thereon for the use and possession of the premises during the time respondent occupied them. The answer simply denied "that $211.18 is a reasonable rent, or reasonable interest, etc.” Respondent introduced no proof on this point and his objection to the introduction of evidence thereon by appellant was sustained. The ruling was correct, for a negative pregnant does not raise 6ueh an issue of fact as to put the parties to their proof. (Welch v. Bigger, 24 Idaho 169" court="Idaho" date_filed="1913-06-02" href="https://app.midpage.ai/document/welch-v-bigger-5170363?utm_source=webapp" opinion_id="5170363">24 Ida. 169, 133 P. 38" court="Okla." date_filed="1913-05-20" href="https://app.midpage.ai/document/wiley-v-edmondson-3816282?utm_source=webapp" opinion_id="3816282">133 Pac. 381; Jackson v. Green,
It may have been within the discretion of the trial court, as suggested by appellants, upon finding the issues in favor of the respondent, to have extended to them an opportunity to clear their title of the clouds found to encumber it and to permit the contract to be rescinded only upon their failure to do so. The action of the court in this particular is not assigned as error and, even if it was, we would be loath, in view of what appears in the record, to disturb the judgment upon this ground. No offer was made in the answer to remove any clouds the court might find upon appellants’ title, and no request for permission so to do was made at any time. Appellants stood upon their allegations that the title was not defective, tendered what title they had, and asked that respondent be required to pay for it.
The order of the court denying appellants’ motion to strike respondent’s cost bill cannot be reviewed for the reason .that it is not part of the judgment-roll, nor is it one of the papers-required to be furnished to this court upon appeal, and it has not been incorporated in a bill of exceptions. (Bumpas v. Moore, supra, and eases therein cited.)
The other assignments of error are immaterial. The judgment appealed from is affirmed. Costs are awarded to respondents.