Coughran v. Bigelow

• Decision Date: 31 August 1893
• Citation: 9 Utah 260,34 P. 51
• Court: Utah Supreme Court
• Parties: EUGENE W. COUGHRAN AND ANOTHER, APPELLANTS, v. HENRY C. BIGELOW AND ANOTHER, RESPONDENTS

34 P. 51

9 Utah 260

EUGENE W. COUGHRAN AND ANOTHER, APPELLANTS, v. HENRY C. BIGELOW AND ANOTHER, RESPONDENTS

Supreme Court of Utah

August 31, 1893

APPEAL from a judgment of the district court of the fourth district and from an order refusing a new trial, Hon. James A. Miner judge. The opinion states the facts, except that the plaintiffs offered evidence that defendant Henderson was a principal, in that he was interested in the land, which evidence was excluded. The contract was a receipt attached on the back of the bond.

Affirmed.

Messrs Bennett, Marshall and Bradley, and Messrs. Dey and Street for the appellants.

The agreement in the bond should prevail because (1) it was prepared by the defendants; (2) it is definite and certain and a solemn instrument under seal; (3) the sureties are not parties to the contract; (4) the bond refers to the contract (which is only a hastily drawn receipt appended to it) in a proviso, which is clearly repugnant to the whole bond and hence must be rejected; and (5) the reference to the contract is only to a particular part of it and not the whole, which particular part is all that is included in the bond.

The construction we contend for is the one put upon the bond by the parties themselves, who all acted as if they understood the bond to govern. The receipt on the back is only an after-thought.

The fact that no tender of the second payment, due October 1, 1890, was made until October 12, 1890, is no defense because it was apparent then, that the vendors had no title, and a tender would have been wholly nugatory. The fact that an extension was granted purchasers was proven on cross-examination of one Henderson, a witness, which was clearly erroneous and plaintiffs were at first even denied the right to contradict the testimony. At any rate an issue was raised for the jury by the admission of this testimony afterwards. Finally defendant Bigelow was the very man who received the payment and waived the forfeiture, and defendant Henderson the plaintiffs were refused permission to show was a party interested in the land, and therefore a principal.

Messrs. Brown and Henderson, for the respondents.

BARTCH, J. ZANE, C. J., and SMITH, J., concurred.

OPINION

BARTCH, J.:

This action was brought to recover the penalty in a bond which was given as a guaranty for the faithful performance of a contract to convey real estate. The respondents were sureties on the bond. When the evidence of the plaintiffs was introduced the defendants moved for a nonsuit, which motion was sustained over the objection of plaintiffs, who thereafter moved for a new trial, and, this motion being overruled, they prosecuted their appeal in this court.

The contract in question, among other things, specified that the purchase price for the land was $ 10,000, of which $ 3,333 was paid down, $ 3,334 was to be paid October 1, 1890, and $ 3,333 on April 1, 1891, and then further provides as follows: "And, in case any payments are not made as above provided, the amount paid herein is forfeited, and this receipt is from that time void and inoperative; and when the payments are made as above provided the land to be conveyed to said Eugene W. Coughran and Nathan H. Cottrell, or their assigns, with good title free from incumbrances." This is a unilateral contract, and according to its terms it was incumbent upon the vendees to pay the whole amount of the purchase price before they could demand performance on the part of the vendors; the vendees, however, having the right to demand and receive the deed from the vendors simultaneously with the making of the last payment, which was to be made on the 1st day of April, 1891. The contract contains a forfeiture clause, and to prevent a forfeiture on the part of the vendees it was necessary for them to make the several payments as therein provided. Time, therefore, was material and of the essence of the contract, and, if the payments were not made on the days specified, a right of forfeiture immediately accrued to the vendors, which they could enforce or not, at their pleasure; but if they afterwards received the payment the right of forfeiture, as to them, was gone. Where it appears from the contract that the parties have in fact agreed that if the vendee shall fail to make the payments as and at the times therein specified, he shall lose the benefit of his purchase, the courts will grant him no relief. Martin v. Morgan, 87 Cal. 203, 25 P. 350. The contract in this case, standing alone, presents no difficulty of construction. Its provisions are simple, and the intentions of the parties appeared clear and unequivocal, an apparent difficulty arising only when, in connection therewith, it is attempted to reconcile the provision of the bond which was given as a guaranty for the faithful performance of the contract on the part of the vendors. The condition of the bond provides as follows:

"The condition of the above obligation is such that the above-bounden E. A. Reed and H. H. Henderson, on or before the first day of October next, or in case of their death before that time, if the heirs of the said E. A. Reed and H. H. Henderson, within three months after their decease, shall and do, upon the reasonable request of the said Eugene W. Coughran and Nathan H. Cottrell, their heirs or assigns, make, execute, and deliver, or cause so to be made, a good and sufficient warranty deed in fee simple, free from all incumbrances, and with the usual covenants of warranty." And, after giving a description of the property, it further specifies: "Provided, the said Eugene W. Coughran and Nathan H. Cottrell comply with their part of the contract this day made and delivered to them by the said E. A. Reed and H. H. Henderson, and a copy of which is hereto attached, then the above obligation to be void; else to remain in full force and virtue."

This obligation refers to the performance of the contract already made and entered into by the parties, and may be rendered null and void either by the vendees failing to make the payments as provided, or, if the...