Obrecht v. Nielson Land & Water Co.
| Decision Date | 27 March 1914 |
| Docket Number | 2565 |
| Parties | OBRECHT v. NEILSON LAND & WATER COMPANY et al |
| Court | Utah Supreme Court |
APPEAL from District Court Third District; Hon. M. L. Ritchie Judge.
Action by Joseph A. Obrecht against the Neilson Land & Water Company et al.
Judgment sustaining a demurrer to the complaint. Plaintiff appeals.
REVERSED AND REMANDED.
C. E Norton for appellant.
APPELLANT'S POINTS.
Where one contracts to do acts which can be performed, nothing but the act of God or a public enemy, or the interdiction of law as a direct and sole cause of the failure, will excuse the nonperformance. So, in this case, when the defendants failed neglected, and refused to perform their part of the contract to "set out said premises and plant the same to a commercial peach orchard and care for the same and reset each year all trees that did not live, until a perfect stand of peach trees is had upon said premises, and plant said premises to said peach trees during the early spring of 1909," as provided in said contract, the plaintiff was thereby released from his part of the contract to make the remainder of the payment due in the summer of 1909, after the breach by the defendants. (Kay v. Barnett, 21 Utah 239; Driver v. S. L. & O. Gas Elec. Co., 22 Utah 143; Cooney v. McKinney, 25 Utah 329; Teachnor v. Tibbals, 31 Utah 10; Guthiel v. Gilmer 27 Utah 496; Haskins v. Dern, 19 Utah 89.)
George M. Sullivan for respondent.
A demurrer for want of facts was sustained to plaintiff's complaint. On his failure to amend, the action was dismissed. He appeals, and complains of the ruling sustaining the demurrer.
In the complaint it is alleged that the plaintiff and the Little Valley Land Company, on the 3d day of August, 1908, entered into a written agreement, by the terms of which the latter agreed to sell and convey to the plaintiff certain real estate, ten acres fully described, situate in Grand County. A copy of the contract is attached to the complaint and made a part of it. It provides that the consideration to be paid by the plaintiff is $ 3000, $ 250 on the delivery of the contract, $ 250 June 1, 1909, $ 250 June 1, 1910, $ 250 June 1, 1911 and $ 250 June 1, 1912. When such payments are made, the Little Valley Land Company agreed to convey the premises by warranty deed and to take a mortgage back for the balance of the unpaid purchase price. It further agreed to plant the premises "to a commercial peach orchard," and to plant the peach trees "during the early spring of 1909," and to care for and replant them, and to care for and to cultivate the premises, etc., until June 1, 1912. The contract further provides:
"It is further understood between the parties to this agreement that if said second party shall at any time after June 1, 1909, become dissatisfied with his purchase, or through sickness or death cannot make further payments on this contract, then, upon sixty days' notice in writing by himself or his legal representatives given to the first party of the agreement, the said second party can have returned to him all the money that he will have paid to the first party on this contract, together with six per cent. interest."
Then it is alleged that the Little Valley Land Company sold and assigned all its lands and contracts entered into with purchasers, including the plaintiff's, to the defendant Nielson, and that he sold and assigned to the defendant, the Nielson Land & Water Company, but that each expressly agreed to carry out all the contracts of the Little Valley Land Company, and assumed and agreed to discharge and perform all its liabilities and obligations with respect thereto. It is further alleged that the plaintiff, on the 3d of August, 1908, when the contract was entered into, paid $ 250, and on the 17th of August of that year paid the further sum of $ 168, or a total of $ 418. Then it is alleged:
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