Gillett v. Cheairs

• Decision Date: 08 February 1926
• Docket Number: 11463.
• Citation: 243 P. 1112,79 Colo. 20
• Parties: GILLETT v. CHEAIRS.
• Court: Colorado Supreme Court

243 P. 1112

79 Colo. 20

GILLETT v. CHEAIRS.

No. 11463.

Supreme Court of Colorado

February 8, 1926

Department 2.

Error to District Court, Logan County; L. C. Stephenson, Judge.

Action by Sallie J. Cheairs against E. M. Gillett. Judgment for plaintiff, and defendant brings error.

Reversed with directions.

Munson & Jones, of Sterling, for plaintiff in error.

Coen &amp Sauter, of Sterling, for defendant in error.

DENISON J.

Sallie J. Cheairs brought suit against E. M. Gillett on a promissory note for $4,000. Her demurrer to the amended answer and cross-complaint was sustained; he stood by his pleading judgmet went against him, and he brings error.

The answer shows that on April 25, 1919, the plaintiff and defendant entered into a contract as follows:

'Articles of agreement * * * between Sallie J. Cheairs * * * of the first part and E. M. Gillett of the second part, witnesseth:

'That if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the first part hereby covenants and agrees to convey to the said party of the second part, in fee simple, by good and sufficient warranty deed to the following lot, piece or parcel of ground, viz:' (Here follows description) 'Said premises to be free and clear of all liens, incumbrances and taxes except taxes for the year 1919 and thereafter.

'And the said party of the second part hereby covenants and agrees to pay to the said party of the first part, the sum of 4,800 dollars in the manner following: Cash $800, the receipt of which is hereby confessed and acknowledged; $4,000 on or before three years from date of this contract. The deferred payment being evidenced by a promissory note given by the second party unto the first party bearing interest at the rate of six per cent. per annum from date until paid, with interest upon the back payments at the rate of six per cent. per annum from date until paid, and to pay all taxes, assessments or impositions that may be legally levied or imposed upon said lot.'

The contract further provides for forfeiture for nonpayment at the election of the first party; also, 'that the time of payment shall be an essential part of this contract;' and that the defendant upon forfeiture shall surrender possession.

The answer further states that defendant executed the note in suit pursuant to the contract; that there are certain incumbrances against the said land; and that plaintiff never had a fee title in the land or any title other than mere color of title; and consequently there was no consideration for his contract; that he has paid the $800 and stands ready to account for issues and profits while he has had possession, and he prays for rescission and the recovery of the $800.

The defense of no consideration will not avail, because plaintiff's agreement was sufficient consideration, and because possession was delivered and held by the defendant for five years, or thereabouts; consequently the case is not one of no consideration, but of partial failure of consideration, which is not a defense to a promissory note. (13 C.J. 368), except pro tanto (C. L. § 3845). However, assuming, as we must, all the answer to be true, we think that the answer and cross-complaint stated facts sufficient to entitle the defendant to some relief. At common law he must have gone into a court of equity for such relief, but under the Code that is not necessary.

The plaintiff in error is wrong in his idea that this is a suit for specific performance. It is a plain suit at law.

We agree with the defendant in error that the covenant to pay and the covenant to convey are, under the terms of this contract, independent covenants. That is true because the contract provides for no conveyance unless the payment shall first be made. It follows that the plaintiff may maintain an action without tendering a deed. This conclusion is reinforced by the fact that a note is given payable at a fixed time without condition or qualification, and no time is fixed for the conveyance. Loud v. Pomona Land & Water Co.,...