Gagnon v. Molden

Citation15 Idaho 727,99 P. 965
PartiesMOISE GAGNON, Respondent, v. CHARLES F. MOLDEN, Appellant
Decision Date28 January 1909
CourtUnited States State Supreme Court of Idaho

BREACH OF CONTRACT-ACTION FOR DAMAGES-CONSTRUCTION OF CONTRACT-ADMISSION OF EVIDENCE.

1. In a contract made and entered into between G. and M., whereby G promises and agrees to pay to M. the sum of $1,650 for one hundred inches of water and a water right delivered upon G.'s lands, and M. agrees to furnish and deliver the required amount of water, and the deferred payments are to bear interest from the date of the contract, and the first installment is to fall due one year from the date of the contract, and in the event M. furnishes the water from the People's canal, G. is to pay $550 as first installment and the balance in one year thereafter; but in the event M furnishes the water from the American Falls canal, G. is to pay $200 as first installment and $200 annually thereafter held, that the contract and agreement contemplates the furnishing and delivering the water on G.'s land prior to the date of the maturity of the first installment, and that a failure to furnish and deliver the water on or before the date fixed for the first annual installment, constitutes a breach of the contract and furnishes ground for action by G for damages.

2. Where a contract provides for the performance of certain labor or delivery of certain articles on the one hand, and payment for the purchase price by the other party, the acts cannot be concurrently performed, and the question as to which act is to be per- formed first must be determined from the nature of the contract and the character of the subject matter.

3. Where the plaintiff alleges the execution of a certain contract between himself and the defendant, and that he paid a certain sum as a part of the consideration concurrently with the execution of the contract, and the defendant denies the payment as part of the purchase price, it is error for the court to exclude evidence offered by the defendant to show that the sum claimed to have been paid was in fact paid for and in consideration of another contract and was a part of another transaction, and constituted no part of the purchase price on the contract involved in the action.

4. In an action for damages alleged to have been caused by reason of defendant failing to comply with his contract to sell and deliver upon plaintiff's land a water right and a certain number of inches of water, it is error to admit evidence as to the value of buildings and improvements made by the plaintiff upon the lands in order to show the amount of damages sustained by him, unless it appears that no like water right could have been purchased at the time of the breach of the contract or at any time thereafter prior to the trial.

5. ID.-In such case the measure of damages sustained is the difference between the contract price for the sale and delivery of the water and the price for which such water and water right can be acquired at the time of the breach of the contract, together with whatever sum the purchaser had paid on the purchase price for such water and water right.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District, for the County of Bingham. Hon. J. M. Stevens, Judge.

Action by plaintiff for damages for breach of contract. Judgment for plaintiff and defendant appealed. Reversed.

Judgment reversed and a new trial granted. Costs awarded in favor of appellant.

John W. Jones, for Appellant.

If either the vendor or the vendee wish to compel the other to fulfill his contract, he must make his part of the agreement precedent, and cannot proceed against the other without an actual performance of the agreement on his part, or a tender and refusal; and an averment to that effect is always made in the declaration upon contracts containing dependent undertakings, and that averment must be supported by the proof. (Davis v. Jeffris, 5 S.D. 352, 58 N.W. 816; Tonge v. Newell, 4 N.Y.S. 906, 16 A.D. 500; Hall v. Little, 85 N.Y.S. 653, 89 A.D. 524; Higgins v. Eagleton, 50 N.E. 287, 155 N.Y. 466; Gillum v. Dennis, 4 Ind. 417; Irwin v. Lee, 34 Ind. 319; Russ Lumber & Mill Co. v. Muscupiabe etc. Co., 120 Cal. 521, 65 Am. St. Rep. 186, 52 P. 995; McCroskey v. Ladd, 96 Cal. 455, 31 P. 558; Underwood v. Tew, 7 Wash. 297, 34 P. 1100; 3 Ency. of Evidence, 821, and cases cited.)

"Where material allegations of the complaint are denied by the answer, the defendant may cross-examine the plaintiff's witnesses to disprove those allegations." (Idaho Merc. Co. v. Kalanquin, 8 Idaho 101, 66 P. 933; 3 Ency. of Evidence, 826.)

A. T. Ryan, and A. M. Bowen, for Respondent.

Generally speaking, the courts will hold covenants to be mutual and concurrent, but this construction always gives way to manifest intent. There are, however, contracts where the law will always presume, unless it otherwise appears by the contract, that the performance of the act or acts should precede payment, such as building contracts, manufacturing contracts and contracts for personal services. This proceeds upon the theory that it is impossible to concurrently perform a building contract and make payment at the same time. (Coburn v. City of Hartford, 38 Conn. 290; Thompson v. Phelan, 22 N.H. 339; Cadwell v. Blake, 72 Mass. 402.) Whether a contract obligation is independent or dependent, or, in other words, should be performed first or only on condition that the other party do something, is one of intent to be gathered from the whole instrument. (Wharton, Contracts, sec. 554 et seq.; Nesbitt v. McGehee, 26 Ala. 748.)

Where the performance by defendant is a precedent condition to payment or performance by plaintiff, plaintiff need allege nor prove nothing more than a readiness and willingness to perform. (Nesbitt v. McGehee, supra; North Am. Oil Co. v. Forsyth Bros., 48 Pa. 291; Cress v. Blodgett, 64 Mo. 449.)

AILSHIE, J. Stewart, J., concurs.

OPINION

AILSHIE, J.

This is an appeal from a judgment and order denying a motion for a new trial. The first assignment of error is that the court erred in overruling defendant's demurrer to the complaint. The complaint alleges that the plaintiff and defendant on November 17, 1903, entered into a contract, which is set out in haec verba; that plaintiff had paid the defendant $ 550, the first payment provided for by the contract, and the further sum of $ 100 as shown by an indorsement on the contract, and that he stands ready and willing to make the other payments as provided for in the contract, upon the performance by the defendant of his part of the contract. It is further alleged that defendant failed, neglected and refused to comply with his part of the contract or to convey the water or water right as stipulated in the contract, and prays for $ 1,500 damages for breach thereof. The contract sued upon is as follows.

"This agreement, made and entered into the 17th day of November, 1903, between C. F. Molden, party of the first part, and Moise Gagnon, party of the second part, WITNESSETH:

"That the first party in consideration of $ 550 (five hundred fifty dollars) to him in hand paid, receipt whereof is hereby acknowledged, and for the further consideration of eleven hundred dollars ($ 1,100), and interest at 6 per cent per annum to be paid in the manner and at the times hereinafter set forth, the said first party agrees to convey and deliver to the said second party upon the following described real estate situated in Bingham county, Idaho, to wit: the SW. 1/4 of NW. 1/4, NE. 1/4 of SW. 1/4, NW. 1/4 of SW. 1/4 and SW. 1/4 of NE. 1/4 Sec. 11, township 3 South, Range 33 East, a water right of one hundred inches of water in either the People's canal, a corporation, or the American Falls Canal and Power Company's Canal, a corporation, provided, however, that if said water right is furnished in the said People's canal it shall be conveyed to said land through said American Falls Canal and Power Co.'s canal and diverted as though it were taken from said last named canal.

"It is understood and agreed by and between the parties that in consideration of the covenants herein the said second party agrees to pay five hundred fifty dollars with interest at 6 per cent per annum on November 17, 1904, and the balance in one year from said last named date with interest at six per cent per annum and should said water right be given in the American Falls Canal and Power Co.'s canal, said deferred payments are to be made as follows: two hundred dollars annually with interest at 6 per cent per annum until paid."

Defendant demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action. It is urged by appellant that both the complaint and contract alleged are silent as to the time when the defendant was to perform his part of the contract, and that it necessarily follows that the covenants are mutual, and that before plain...

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7 cases
  • Berryman v. Dore
    • United States
    • Idaho Supreme Court
    • December 11, 1926
    ... ... 1429.) ... The ... so-called release is merely a receipt and its terms may be ... explained, varied or contradicted by parol. (Gagnon v ... Molden, 15 Idaho 727, 99 P. 965; Barghoorn v. Moore, 6 ... Idaho 531, 57 P. 265.) ... Such ... instruments are in nowise ... ...
  • Idaho Gold Dredging Corporation v. Boise Payette Lumber Company
    • United States
    • Idaho Supreme Court
    • March 25, 1941
    ...or contradict receipts which are mere prima facie evidence. Stein v. Fogarty, 4 Idaho 702; Barghoorn v. Moore, 6 Idaho 531; Gagnon v. Molden, 15 Idaho 727; Wheeler v. Gilmore Etc., R. R. Co., Ltd., 23 479; Berryman v. Dore, 43 Idaho 327.) Services rendered in the Supreme Court of the United......
  • Gem State Sales Company v. Rudin Brothers, Inc.
    • United States
    • Idaho Supreme Court
    • February 19, 1935
    ...Costs awarded to respondent. Hawley & Worthwine, for Appellant. The evidence was not sufficient to justify the verdict. (Gagnon v. Molden, 15 Idaho 727, 99 P. 965; 48 J., p. 641, par. 83; 20 Cal. Jur. 955.) George Donart and Norris & Kenward, for Respondent. The weight or probative sufficie......
  • Wright v. Stewart
    • United States
    • Idaho Supreme Court
    • November 19, 1919
    ...or performance by plaintiff, plaintiff need allege nor prove nothing more than a readiness and willingness to perform. (Gagnon v. Molden, 15 Idaho 727, 99 P. 965; Cadwell v. Blake, 72 Mass. (6 Gray) 402; Nesbitt v. McGehee, 26 Ala. 748; 1 Wharton on Contracts, secs. 554, 557; Clark on Contr......
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