92 P. 1004 | Utah | 1907
The subject-matter of this action has been before this court in another form as appears from 28 Utah 295, 78 Pac. 674, 107 Am. St. Rep. 720. The action then was one of ejectment by this plaintiff against these defendants, and was based upon the theory that the contract upon which, thin suit is based had been violated by the defendants, SO' that the plaintiff might rescind it, and be repossessed of the land and water right— the subject-matter of the contract. This right was denied to the plaintiff by this court, and she now sues to recover the unpaid purchase price, and, in default of payment thereof, to subject the land to sale as upon a foreclosure of a mortgage or vendor’s lien. The contract sued upon, and under which the defendants went into and are in possession, was produced a.t the trial by the defendants, and is in form both a receipt and contract, and, so far as material here, reads as follows: “Received of Soren K. Jorgensen the sum of eight hundred and fifty ($850) dollars cash in part payment for about four and one-half (4-J) acres of ground together with all improvements thereon and four (4) shares of water to July 1st of each year and two shares of water after the first day of July of each year, said land being situate . . . to be more fully described in deed and abstract showing good title which is to. be delivered upon final payment. The whole consideration is to be three thousand ($3,000) dollars, the balance or remaining sum of twenty-one hundred and fifty dollars is to be paid as follows, to wit: Six hundred and fifty ($650) dollars on or before March 1, 1902, and fifteen
The plaintiff alleges in her complaint that there was due as principal and interest on the contract the sum of $2,088.33, and for taxes and insurance paid by her for the use of the defendants the further sum of $72.40, making the whole amount due for which she prayed judgment the sum of $2,160.73, with accrued and accruing interest. The defendants answered jointly, but we shall hereafter deal only with the defendant Soren K. Jorgensen, as the contract was made with him alone, and the other defendant was made a party only because she was the wife of the principal defendant, and thus had a dower claim in the premises. The answer contained a copy of the contract above set forth, but denied that the amount claimed by the plaintiff remained unpaid thereon; alleged the failure of the plaintiff to furnish the defendant an abstract of title and with a. failure to deliver the amount of water called for by the contract, and pleaded various matters as counterclaims. Upon a trial to the court, findings and conclusions of law were made in favor of the plaintiff, and a judgment rendered in her favor for the sum of $2,295.07, and, in default of payment, the property was ordered sold as upon a decree of foreclosure of a mortgage. The plaintiff was also required to furnish the defendant with a complete abstract showing title in the plaintiff, and, upon receipt of the money, to deliver to the defendant a good and sufficient deed warranting the title to- the property. From these findings and decree the defendant appeals.
We will notice only such errors as we deem material. The first one to be noticed is that the court erred in computing the amount of water that should be delivered by the plaintiff to-the defendant under the terms of the contract. That clause-of the contract, which relates to- the amount of water, is as
The next assignment is based upon the admission of evidence. It will be observed that the receipt or contract acknowledges the receipt of payment of a certain sum, and also states that a certain sum remains unpaid. At the trial the plaintiff was permitted to prove that the $3,000 expressed in the contract was not the actual consideration, but that $2,500 was the true consideration for the land. She was further permitted to prove, over -defendant’s objection, that in order to reduce the $3,000 expressed consideration to the true consideration a credit was given of $500, and that in ad
“The words of conveyance of land are the operative words of the contract, and constitute the contract itself. But the acknowledgment of payment of the consideration, and of its amount, are but the acknowledgment of the existence of facts. The former cannot be contradicted, but the latter may be shown to be otherwise than as .acknowledged.” (Italics ours.)
It seems ¿Lear to us that, if the statement that the amount remaining unpaid had not been expressed in the contract counsel would not now assert that it would have been error to simply show what was paid and what remained unpaid thereon. To so contend would amount, in effect, to the assertion that a mere receipt cannot be contradicted by parol, and that one may not show a breach of a contract contrary to the acknowledgment of the receipt of money stated therein. In the contract in question, the statement of the amount remaining unpaid, in effect, was a statement of a mere conclusion deduced from other facts. If the amount acknowledged to háve been received had not been actually paid, then the balance of the consideration remaining unpaid upon the contract would be ascertained by a mere process of subtraction. Can it reasonably be contended that by simply stating it in terms it became an obligation different from what it would have been if it had not been expressed? When the true consideration was agreed upon, and a part of it actually paid, then the difference between the two would be the amount due. But if the part acknowledged to have been received had not heen actually paid, then a larger sum would remain due upon the contract. To prove this fact would not change nor affect the amounts that were to be paid in the future, but it would only affect that portion which was to be paid in cash forthwith. This in no sense would be adding to the actual consideration agreed to be received and paid; it would leave that just as it was before, but would amount only to proving that the whole sum receipted for was not actually paid, and this would simply be proving the full amount due on the contract and thereby the extent of the defendant’s breach in failing to make payment. This is well' illustrated in the cases cited by counsel for the defendant. In all of them the
The next assignment is couched in the following language: "The court erred in overruling appellant’s objection to the introduction of testimony, made on the ground that the complaint does not allege the tender of a deed before bringing suit.” In Freeson v. Bissell, 63 N. Y. 168, the court, in effect, held that an action to subject premises to a vendor’s lien may be maintained without first tendering to the ven-dee a deed for the premises sold. In that case the complaint did not even proffer a deed. The reason for the holding in that ease is based upon the analogy between such a case and one for specific performance, and, in the latter class of cases, many courts have held that an action may be maintained without first tendering a deed. Among other cases we cite the following: Crarey v. Smith, 2 N. Y. 65; Pittinger v. Pittinger, 3 N. J. Eq. 156; Brock v. Hidy, 13 Ohio St.
“When the party places himself in such a position that it appears if the tender were made its acceptance -would he refused, then no tender need be made. ... To this effect the authorities are very full.”
The doctrine is recognized by this court upon the question of demand as a condition precedent to a right of action in the case of Thompson v. Whitney, 20 Utah 1, 57 Pac. 429; Brown v. Eaton, 21 Minn. 409. The evidence in this case brings it clearly within this doctrine. It clearly appears that the defendant disputed the amount due on the contract, and that he at all times demanded much more water than he was entitled to under it. The testimony is to the effect that at different times he declared that he would not pay, unless and
We have had some difficulty, however, in determining just what would be the just and equitable disposition of the case in view’ of the error committed by the court in not awarding to the defendant the quantity of water to which he is entitled under the contract. Were it not for the fact above stated, that the defendant would have refused to comply with the contract with regard to the payment although the plaintiff had tendered a deed and offered him the quantity of water found to be due him in this opinion, the case would have to be reversed for a retrial. This would be upon the ground that the plaintiff would have no right to' foreclose her vendor’s lien until she had delivered, or offered to deliver, the water she sold with the land and the whole thereof. But in view that the parties were thoroughly at variance with regard to the quantity of water sold and to be delivered, and the plaintiff had actually, delivered, and the defendant had used all that the plaintiff believed was. due to the defendant, and that an offer of the true quantity, as we have herein found it to be, would have been refused by the defendant, we do not think it would at all be consonant with equitable principles to turn the plaintiff out of court upon this ground. It is clear to us that, under the circumstances, the ultimate rights of both parties had to be determined by some court, although the mutual obligations were expressed in the contract. We think, therefore, that the plaintiff had a right to plant her action just as she did do, and the court had the power to adjust the rights arising out of the contract between the parties, and -to de
Under the peculiar circumstances of this case, the court is further directed to modify its judgment with respect to costs, and to require each party to pay the costs incurred by each. But in case a sale of the premises is ordered, the defendant shall be required to pay all the costs and expenses of sale. In all other respects the findings and decree are approved. The defendant to recover costs of this appeal.