Loud v. Pomona Land Water Co, No. 194

CourtUnited States Supreme Court
Writing for the CourtJACKSON
Citation153 U.S. 564,38 L.Ed. 822,14 S.Ct. 928
Decision Date14 May 1894
Docket NumberNo. 194
PartiesLOUD v. POMONA LAND & WATER CO

153 U.S. 564
14 S.Ct. 928
38 L.Ed. 822
LOUD

v.

POMONA LAND & WATER CO.

No. 194.
May 14, 1894.

Page 565

The Pomona Land & Water Company, defendant in error, a corporation duly organized under the laws of the state of California, brought this action of covenant against Henry M. Loud, a citizen of the state of Michigan, to recover various sums of money due upon agreements under seal, embodied in 20 contracts and 9 applications for the sale and purchase, at different prices, of separate and distinct parcels of land lying and being in the state of California, together with designated shares of stock in certain irrigation companies.

The 20 contracts declared on in counts 1 to 40, inclusive, are substantially the same in form, the difference between them being in the dates, description of land, purchase price, time of payment, and the number of shares of stock in the irrigation companies. The applications declared on in counts 41 to 49, inclusive, while relating to different parcels of land, and varying in dates, purchase price, time of payment, etc., are also substantially alike.

These several contracts and applications need not be separately noticed or considered. One class is represented and illustrated in the contract set out in the first count of the declaration, while the other is set out according to its legal effect in the forty-first count of the declaration. The contract declared on in the first count is as follows:

'This agreement, made the eighth day of April, 1887, between Pomona Land and Water Company, a corporation duly organized under the laws of the state of California, and having its office and principal place of business in the town of Pomona, county of Los Angeles, state of California, party of the first part, and H. M. Loud, of Oscoda, Michigan, party of the second part, witnesseth that in pursuance of a resolution of its board of directors adopted October 25, A. D. 1883, and in consideration of twenty-five hundred and thirty-nine dollars, paid by the party of the second part, the party of the first part does covenant and agree that, after the making of the payments and full performance of the covenants

Page 566

hereinafter expressed to be made and performed by the party of the second part, the party of the first part will, in consideration thereof, convey by deed of grant, bargain, and sale, to the party of the second part, his heirs or assigns, the following described real property, situated in the county of Los Angeles, state of California, to wit: Lot seventeen (17) of the northeast Pomona tract, according to the map of said tract duly recorded in Book 5, page 461, of Miscellaneous Records of Los Angeles County, California, estimated to contain forty and .62 acres of land, together with 406.2 shares of stock of the Del Monte Irrigation Company, representing four and .062 inches of water under four-inch pressure, measured from center of aperture, said stock to be delivered by the party of the first part, and accepted by said party of the second part, subject to the by-laws of the said Del Monte Irrigation Company, when payment in full is made for the above-described land.

'The party of the first part reserves the exclusive right of way for laying pipes and aqueducts for conveyance of water; also the right to enter upon said lands and make necessary excavations for laying pipes and aqueducts, and to inspect, repair, repiace, and control the same.

'And for and in consideration of the foregoing agreement, and as the purchase price of the above-described premises, the party of the second part do covenant and agree to pay to the party of the first part, its successors or assigns, the sum of ten thousand one hundred and fifty-five dollars, United States gold coin, to be paid in the following manner: $2,539 on or before delivery of this contract; $3,808 on or before April 8, 1888; $3,808 on or before April 8, 1889; ___ on or before ___, 188_; and interest upon said respective sums from April 8, 1887, until paid, at the rate of eight per cent. per annum, payable annually; and if not so paid, at option of said company, to be added to principal, and bear like interest.

'And the party of the second part, in consideration that

Page 567

the party of the first part does hereby agree that the party of the second part may at once enter upon, occupy, and enjoy the above-described premises, does further covenant and agree to pay and discharge all taxes, assessments, and water rates that may be levied or assessed during the pendency of this agreement on the said described premises; and, in default of the party of the second part doing so, the party of the first part may pay the same, and, before the final payment of purchase money, the party of the second part hereby expressly agrees to refund all amounts so paid, with interest from the date of such payment at the rate of one per cent. per month.

'And the party of the second part further agrees that during the pendency of this agreement he will not commit or suffer any strip or waste of said premises, or of any improvements now existing or hereafter to be placed thereon; and, if any default shall be made in any of the above payments for the space of sixty days after same shall become due, then it shall be lawful for the party of the first part, its successors or assigns, at their option, to rescind this agreement to convey, to re-enter upon, and to repossess said premises and all improvements existing thereon, removing the party of the second part and all claiming under him therefrom; and it is agreed that in such case that all payments theretofore made shall be retained by the party of the first part as compensation and liquidated damages for the previous use, enjoyment, and occupation of the premises by the party of the second part; and it is hereby expressly covenanted and agreed between the parties hereto that this instrument is not and shall not be construed as a conveyance, equitable or otherwise, and that, until the delivery of said final deed of conveyance or tender of all payments precedent thereto, the party of the second part, his heirs or assigns, shall have no title, equitable or otherwise, to said premises.

'It is further expressly agreed that time is of the essence of this contract.

'In witness whereof, the party of the first part has caused its corporate name and seal to be subscribed and affixed by

Page 568

its president and secretary thereunto duly authorized; and the party of the second part has hereunto set his hand and seal, this third day of May, 1887. Executed in duplicate.

'Pomona Land and Water Company,

'By H. A. Palmer, President.

'[Seal of the Company.]

'By F. L. Plmer, Secretary.

'H. M. Loud. [L. S.]

'Sealed and delivered in the presence of B. F. Nichols.'

The applications are in the following form:

'Application for Purchase. Pomona, Cal., April 15th, 1887. Received from H. M. Loud seventy-five dollars deposit on application for purchase of northeast quarter (N. E. 1/4) of lot twenty-two (22), containing ten (10) acres of land, according to map of the San Antonio tract, duly recorded in Book 3, p. 7, of Map Records of San Bernardino County, with usual water rights pertaining to said tract, at the price of fifteen hundred dollars, and on the following terms: Seventy-five dollars cash deposit as above. First payment, $300.00, within sixty days from date; second payment, $562.50, on or before April 15th, 1888; third payment, $562.50, on or before April 15th, 1889; second and third payments to bear interest from date at the rate of eight per cent. per annum, interest to be payable annually. In consideration of the premises, I, H. M. Loud, hereby agree to purchase said property and pay for the same at the price and on the terms above set out; and in consideration that the Pomona Land and Water Company has withdrawn from the market the above-described land for sixty days, so that the said H. M. Loud may purchase the same at the above agreed on price, in case the said H. M. Loud fails or refuses to make said first payment, as above, within the time above mentioned, then the deposit herein made shall be retained by the Pomona Land and Water Company as the estimated damages suffered

Page 569

and the liquidated damages received by said company on account of the withdrawal of the land from the market as aforesaid. Time is hereby declared to be of the essence of the fulfillment of the obligation of the said H. M. Loud to purchase the above land under the terms and conditions above expressed. No title, legal or equitable, nor any right to the possession of the above-described land, shall inure to said H. M. Loud until the Pomona Land and Water Company shall have delivered an executed contract to him for the same. H. M. Loud. [Seal.] Thomas & Easton. [Seal.] F. MacPherson, Ag't.'

Indorsed: 'Pomona, June 20th, 1887. Rec'd $300.00, being balance of first payment on the within application. Pomona Land and Water Company. F. L. Palmer, Treas.'

The ninth application for the purchase of lot 11 of the northeast section of the Pomona tract differed from the rest in the fact that only part of the first payment was made.

The declaration, after alleging the refusal and failure of the defendant below to pay the respective sums due under the several contracts, averred that the plaintiff had been at all times, and was still, ready and willing, upon the making of the payments in said contracts expressed to be made and performed by the said Henry M. Loud, to convey, by deed of grant, bargain, and sale, to the said Loud, his heirs or assigns, the property described in said contracts, together with the shares of stock of the respective irrigation companies referred to in the contracts. There was no averment in the declaration of any tender of a conveyance or conveyances of the lands or of the stock in the irrigation companies, nor of any tender of any conveyance or contracts referred to in the...

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74 practice notes
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • July 17, 1923
    ...was a condition precedent to respondent's right to receive an abstract and deed under the terms of the contract. (Loud v. Pomona Land Co., 153 U.S. 564, 38 L. ed. 823; Eastern Oregon Land Co. v. Moody, 198 F. 7; Paine v. Brown, 37 N.Y. 228; Bartlesville Oil Co. v. Hill, 121 P. 208; Grays v.......
  • Chicago, I.&L. Ry. Co. v. Southern Indiana Ry. Co.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 6, 1904
    ...of the contrary intention. A. & E. Ency. of Law, vol. 7, p. 95; Wooten v. Walters, 110 N. C. 251, 14 S. E. 734, 736;Loud v. Pomona, 153 U. S. 564, 14 Sup. Ct. 928, 38 L. Ed. 822;Southwell v. Beezley, 5 Or. 458. The contract under examination excludes the court from treating it as a divisibl......
  • El Dorado v. Citizens' Light & Power Co., 353
    • United States
    • Supreme Court of Arkansas
    • May 7, 1923
    ...upon construed as other contracts. 92 S.W. 948; 64 S.E. 171; 113 F. 256; 86 Va. 608; 84 S.W. 378; 72 S.W. 55; 75 N.W. 130; 125 So. 366; 153 U.S. 564; 55 Pa. Sup. 564; 55 Ark. 360, 105 Ark. 626; 95 Ark. 532; 134 U.S. 67; 137 Ark. 195; 5 Ark. 595. Franchise forfeited for failure to perform co......
  • Chicago, Indianapolis & Louisville Railway Co. v. Southern Indiana Railway Co., 4,615
    • United States
    • Indiana Court of Appeals of Indiana
    • April 6, 1904
    ...7 Am. and Eng. Ency. Law (2d ed.), 95; Wooten v. Walters (1892), 110 N.C. 251, 14 S.E. 734; Loud v. Pomona Land, etc., Co. (1894), 153 U.S. 564, 14 S.Ct. 928, 38 L.Ed. 822; Southwell v. Beezley (1875), 5 Ore. 458. The contract under examination precludes the court from treating it as a divi......
  • Request a trial to view additional results
74 cases
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • July 17, 1923
    ...was a condition precedent to respondent's right to receive an abstract and deed under the terms of the contract. (Loud v. Pomona Land Co., 153 U.S. 564, 38 L. ed. 823; Eastern Oregon Land Co. v. Moody, 198 F. 7; Paine v. Brown, 37 N.Y. 228; Bartlesville Oil Co. v. Hill, 121 P. 208; Grays v.......
  • Chicago, I.&L. Ry. Co. v. Southern Indiana Ry. Co.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 6, 1904
    ...of the contrary intention. A. & E. Ency. of Law, vol. 7, p. 95; Wooten v. Walters, 110 N. C. 251, 14 S. E. 734, 736;Loud v. Pomona, 153 U. S. 564, 14 Sup. Ct. 928, 38 L. Ed. 822;Southwell v. Beezley, 5 Or. 458. The contract under examination excludes the court from treating it as a divisibl......
  • El Dorado v. Citizens' Light & Power Co., 353
    • United States
    • Supreme Court of Arkansas
    • May 7, 1923
    ...upon construed as other contracts. 92 S.W. 948; 64 S.E. 171; 113 F. 256; 86 Va. 608; 84 S.W. 378; 72 S.W. 55; 75 N.W. 130; 125 So. 366; 153 U.S. 564; 55 Pa. Sup. 564; 55 Ark. 360, 105 Ark. 626; 95 Ark. 532; 134 U.S. 67; 137 Ark. 195; 5 Ark. 595. Franchise forfeited for failure to perform co......
  • Chicago, Indianapolis & Louisville Railway Co. v. Southern Indiana Railway Co., 4,615
    • United States
    • Indiana Court of Appeals of Indiana
    • April 6, 1904
    ...7 Am. and Eng. Ency. Law (2d ed.), 95; Wooten v. Walters (1892), 110 N.C. 251, 14 S.E. 734; Loud v. Pomona Land, etc., Co. (1894), 153 U.S. 564, 14 S.Ct. 928, 38 L.Ed. 822; Southwell v. Beezley (1875), 5 Ore. 458. The contract under examination precludes the court from treating it as a divi......
  • Request a trial to view additional results

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