31 Colo. 274 | Colo. | 1903
delivered the opinion óf the court.
February 7, 1894, appellant entered into an agreement with Cornelius and E. It. Murphy, whereby he agreed to sell the Murphys an interest in a mining claim. The material provision in the contract is as follows:
“Upon condition, however, that the' said parties of the second part shall pay to party of the first part ($1,000) One Thousand Dollars, on or before January 1, 1896, and also to pay for, or do, an equal share according to their interest of all work or improvements put on said claim before that time, and the failure to do so within forty days after work or money has been expended by the party of the first part will work a forfeiture of this agreement. ’ ’
Following this, the contract recites:
“Parties of the second part further agree that their share of profits received for ore shipped from said claim shall be paid by them to party of the first part, and to apply on the purchase price until said price has been paid in full. ’ ’
The one thousand dollars mentioned in the contract was not tendered to appellant until January 22, 1896, at which time he refused to accept it, or execute a deed, because it had not been offered within the time fixed by the contract. The Murphys thereafter commenced an action to enforce the specific performance of the contract, or for damages in the event McKenzie was unable to deed them the property.
According to the contention of counsel for appellees, their complaint was framed upon the theory that by the performance of, or payment for, the work mentioned in the contract, and entering into the possession of the premises, they thereby performed one of the essential stipulations which rendered the
Of the several propositions argued'by counsel for appellant it is only necessary to consider two: (1) Was time of the essence of the contract as to the payment of the thousand dollars purchase price; and (2) did the defendants establish such an excuse for their failure to tender the purchase money within the time fixed by the contract, that they were relieved from a strict compliance with its terms as to the time of payment of that sum?
1. The plaintiffs claim to have performed that condition of ’ the contract which required them to pay for, or do, an equal share, according to their interest, of all work or improvements placed upon the mining claim during the period within which they might consummate the purchase by the payment of the thousand dollars. This claim upon their part is not denied, and the first question to consider is the character of the contract in . question. That is to say, was it a mere option to purchase which they secured from McKenzie, or did they, by performing or paying for the work thereby pay a part of the consideration for the purchase of mining premises? They were under no obligation to perform or pay for the work mentioned, or pay the purchase price, except at .their option, while on the other hand, if they complied with the conditions of the agreement McKenzie was bound to convey them the interest named. They could abandon the contract if they saw fit, and
In support of the contention of counsel for appellees, that the Murphys had a reasonable time after the first day of January, 1896, within which to pay the thousand dollars purchase price, because they had entered into the possession of the premises, and paid part of the consideration of the purchase price by performing or paying for work done upon the premises, we are referred to Byers v. Denver C. R. Co., 13 Colo. 552. An examination of that case, however, discloses its distinguishing features from the
2. The complaint was challenged by demurrer, upon the ground that it did not state facts which would excuse the plaintiffs from tendering the purchase price on the day fixed by the contract. In substance the statements of the complaint on the subject were, that plaintiffs had been misled by the defendant as to the date when the purchase price was due, and relying upon his statements, they had failed to tender him the money on the date fixed by the contract. Whether or not the complaint is sufficient to ■excuse the plaintiffs from their failure to strictly comply with the agreement made with McKenzie is not a-question which it is necessary to consider, be
On behalf of the appellee it is contended that no such exception was reserved to the findings and decree of the court as will authorize the review of the judgment upon the ground that it is not supported
The judgment of the district court is reversed, ‘and the cause remanded, with directions to dismiss the action. Judgment reversed.