88 P. 230 | Utah | 1906
This is an action for breach of contract. In view that the whole contention in this court arises upon the complaint, we shall set forth somewhat in detail the allegations, which, in substance, are: That on July 27, 1891, the plaintiff (hereinafter called respondent) was the owner of certain lands, describing them; that on the said day and year the defendant (hereinafter styled appellant) procured from the respondent and his wife a deed whereby said land was conveyed to the appellant for a consideration therein expressed of $2,200, but in fact no part thereof, or any other consideration, was paid for said land; that at the time of the execution and delivery of said deed respondent was side and had no recollection of either the signing or acknowledgment thereof; that upon recovering from said sickness respondent expressed dissatisfaction with or repudiated said deed whereupon the appellant entered into an oral agreement with respondent whereby it was agreed that, in consideration that respondent would permit said deed to stand as a deed of conveyance, appellant would thereafter pay the respondent one-half of all the crops which would be produced each year upon the land described in said deed, said payments to continue during respondent’s natural life; that appellant had complied with said agreement and had paid respondent said portion of the crops each year until the year 1900; that no consideration was ever paid-for said land except the crops as above stated; that in pursuance of said oral agreement appellant took possession of said land; that on the 8th day of
Appellant has assigned a number of errors, but, in the brief, he relies for a reversal upon the following grounds, stated by him in the brief as follows: “(1) On the statute of frauds; (2) on the statute of limitations; (3) on the question of former adjudication of the case.” We will consider these in the order as stated above.
It is asserted by counsel that the transaction upon which
“Oases where the promise is to continue to do something1 until an implied contingency occur, as, for instance, to pay during the prom-isee’s life, to pay during the life of another, to work for another during his life, .... are not within the statute, because the contracting parties contemplated that the one whose life is involved may die within the year.”
This statement of the law is certainly supported by the authorities. (See 20 Cyc. 203, and note 16, where the authorities are in part cited; McCormick v. Drummett, 9 Neb. 584, 2 N. W. 729.)
The contention that the action is barred is clearly without merit. The action involved only the installments falling due for the years 1903 and 1904. Those for all the former years were paid voluntarily by appellant, except for the years 1901 and 1902, and those he was compelled to pay by reason of the former action. This action having been commenced
The claim made by counsel that the cause of action declared on in this ease was involved and adjudicated in the former action for the installments for the years, 1901 and 1902 is equally untenable. A mere cursory examination of the issues of the former case conclusively shows that that action was not founded upon a breach of the entire contract, but upon the breaches only arising from the failure to pay the installments due for the two years last-above mentioned. 'The contract is a continuing one during the life of respondent,, but maturing in installments' of yearly payments. It cannot be legally discharged without the consent of respondent until his death, hut may be enforced by proper action whenever and as often as an installment falls due and remains unpaid, unless the respondent brings his action as for a breaeh of the entire contract and not only for the part then due. If this be done and the party sued does not object to having the entire damages assessed against him, no doubt a,judgment in such a case becomes a bar to- a future action. While in view that appellant refused to perform in 1901, respondent might possibly have sued for an entire breach and recover damages therefor, he did not choose to do so, and therefore the recovery by him of the amounts due him for the years 1901 and 1902 cannot bar his right to recover for the amounts due for the years 1903 and 1904, or for any future years. We think the election to treat the failure to pay as an entire breach, or only a partial one, is with the respondent. At least this is the law applicable to the state of the record before us in this case. (9 Cyc. 648, and cases cited; Kadish v. Young, 108 Ill. 170, 43 Am. Rep. 548; Gomer v. McPhee [Colo. App.], 31 Pac. 119; McGrath v. Cannon, 55 Minn. 457, 57 N. W. 150; Zuck v. McClure, 98 Pa. 541.) In fact it can hardly be said that this case falls directly within the class of cases where there is a contract to do a specified thing and which is to be performed in parts, but it belongs rather to that class where the consideration or purchase price of the
The judgment, therefore, is affirmed, with costs.