Vincent v. Larson

• Decision Date: 01 January 1869
• Citation: 1 Idaho 241
• Parties: William Vincent, Appellant, v. Thomas Larson Et Al., Respondents.
• Court: Idaho Supreme Court

1 Idaho 241

William Vincent, Appellant, v. Thomas Larson Et Al., Respondents.

Supreme Court of Idaho

January 1, 1869

EXECUTORY CONTRACT-CONSIDERATION-EVIDENCE.-It is competent for a party to an executory contract to show by parol evidence that the consideration has been paid.

WRITTEN CONTRACT, EXTRINSIC EVIDENCE TO EXPLAIN.-Extrinsic evidence is admissible to explain the recitals and promises of a written contract.

SPECIFIC PERFORMANCE-DISCRETION OF COURTS.-The specific performance of a contract is not a matter of right, strictly speaking, but a matter in the sound and reasonable discretion of the court.

APPEAL from the Second Judicial District, Owyhee County.

F Ganahl and J. C. Henly, for the Appellant. Henry Martin, for the Respondents.

Opinion by KELLY, J.;

BOWERS C. J., and MILLER, J., concurring.

Bill in chancery for the specific performance of a contract for the purchase and sale of certain mining ground, three hundred and fifty feet in the second south extension of the Oro Fino quartz lode. The case comes before us on appeal from the judgment of the court below, sustaining two demurrers to the bill. The bill avers the sale to plaintiff by Larson of certain mining ground, situated in Owyhee county, and consisting of three hundred and fifty feet of a quartz vein on the thirteenth day of April, 1868; that on that day the defendant, Larson, executed and delivered to plaintiff a writing obligatory, under seal, stamped and acknowledged and recorded, by which he agreed to convey to plaintiff three hundred and fifty feet of a quartz lode-on the payment to him by plaintiff of the sum of five thousand two hundred and fifty dollars in coin, on or before the first day of June 1868; that on the said thirteenth day of April, 1868, and after the execution of the instrument by him, defendant delivered lawful and peaceable possession of said three hundred and fifty feet of mining ground to plaintiff; that plaintiff entered into possession thereof; opened and de-

veloped the same; expended over one thousand dollars in so doing, and made all his preparations to continue the working thereof; and by his labor thereon, the said mining ground has been proved to be of great value; that on the first day of June, 1868, he tendered to Larson the full amount of the purchase money in coin-five thousand two hundred and fifty dollars, and demanded of Larson a deed to said premises; that Larson refused to execute said deed; that he now brings the money into court and tenders it in payment for said mining ground; that Larson is wholly irresponsible and insolvent, etc., and asks that Larson be compelled to convey.

The points raised by respondents' counsel in the argument of the demurrer go to the validity of the contract or agreement between the parties for the purchase of the mine. For the purpose of considering these questions, we will give the language referred to in the contract. After reciting in the usual form that the said Thomas Larson is held and bound unto William Vincent in the penal sum of five thousand two hundred and fifty dollars, for which he will well and truly pay, etc., the condition is recited in the following words: "The conditions of the above obligation are such that whereas the above-bounden Thomas Larson has on the day of the date hereof sold to said William Vincent the following described property, to wit: [here follows a description of the mining ground] for the sum of fifteen dollars per foot in coin, amounting to the sum of five thousand two hundred and fifty dollars, which said sum of money is to be paid to the said Thomas Larson, in coin, on or before the first day of June, 1868, and the said Thomas Larson shall, on the first day of June, 1868, or at any time before, on the payment of said sum of money, so to be paid as aforesaid, make, execute, stamp and deliver unto the said William Vincent, or to such person or persons as he may designate, a good and sufficient deed or deeds of conveyance of the said mining property heretofore described. Now, if the said William Vincent shall fail to pay the said sum of money at the time aforesaid; or if the said William Vincent shall so pay the said sum of money at or before the time aforesaid, and the said Thomas Larson shall upon such payment well and faithfully on his part

perform the covenants herein, then this obligation to be null and void, otherwise to be and remain in full force and effect."

The grounds presented by the demurrer are:

1. That the contract sought to be specifically enforced is without consideration.

2. That the contract lacks the essential element of mutuality.

3. That it is not a matter of right to grant specific performance.

It is contended by respondents' counsel that this instrument constitutes the whole contract; that no evidence can be introduced aliunde to show that plaintiff entered into the possession of the premises, made improvements, paid or offered the purchase money, or in any way accepted the contract. Strictly speaking, all contracts are the subject of an offer. If one party says, "I will give you so much money for this thing," or the other says, "I will give you this thing for so much money," all agree that this is an offer to sell or buy, and if the offer is accepted, it ripens into a contract. To execute the contract, one party must pay the money, and the other must deliver the thing sold. But the execution of the contract is an independent matter, and may or may not immediately follow the contract. It may be immediately executed by one party and not by the other. Then the party who has executed would have a right to compel the other party to execute his part of the contract. If we take into consideration the force of the contract as contra-distinguished from the execution of the contract, we shall not be at a loss to determine what evidence may be introduced to compel the performance or execution of the contract. Thus, if A was to enter into a written contract to haul all the logs on a certain lot by a certain time for a specified price, no one would pretend that A, after reciting the contract, could not set up that he had hauled the logs within the time specified, and payment was refused. In fact, he must do so, and must substantiate it by proof, to entitle him to recover. It is true that hauling the logs was his part of the contract, but it was the performance, and if declared upon according to the tenure of the

contract, his right to show the fact by parol evidence would be absolute, for it could not be ingrafted into the contract, when the performance was to take place within a limited time thereafter. Again, if notes had been given for the consideration money for the conveyance of land, could there be any doubt that such notes would be recoverable, when the deed expressed that the consideration had been paid in hand? Now, it is certain that the consideration can be inquired into by the contracting parties; yet, if you produce the higher proof arising from the deed when the consideration is confessed to be paid, it will not defeat a recovery on the notes; so when two parties make a joint conveyance of land, and the purchase money is paid to one, the other party may sue the one and recover the money for his share, notwithstanding the recital in the deed, that the money was paid to both. He is entitled to show by parol evidence the true fact, and if he is entitled to more than half the money, he may go beyond the deed, and show what share of the property he actually conveyed, in order to determine his share of the money.

Now, if A give B his bond or note, it would be not only extravagant, but wholly inconsistent with the character of the transaction to recite in the obligation that it was delivered and in the possession of A; still we would set that fact up in the complaint if suit was brought, with the right to prove it by parol evidence, nor is it common to make recitals of delivery in any contracts, notwithstanding delivery, possession, or performance must be averred when suit is brought by a party entitled to recover, and that averment must be made good by evidence beyond the contract itself.

Hence, it is certain that some evidence without must be admissible in the explanation or interpretation of every contract, however plain the meaning of the contract, or intelligible and certain its language. "Extrinsic evidence is admissible to identify its subjects, or its objects, or to explain its recitals or its promises, so far, and only so far, as it can be done without any contradiction of, or any departure from, the meaning which is given by a fair and rational interpretation of the words actually

used." The bill in this case avers the acceptance by plaintiff, by entering into the possession, developing the mine, expending large sum of money, and, lastly, by offering the full payment of the purchase money, on the first day of June, 1868.

Says Judge Story: "A court of chancery will look to the substance and not the form of the contract." "The jurisdiction of courts of equity to decree a specific performance of contracts is not dependent upon, or affected by the form or character of the instrument. What these courts seek to be satisfied of is, that the transaction in substance amounts to, and is intended to be, a binding agreement for a specific object, whatever may be the form or character of the instrument. Thus, if a bond with a penalty is made upon condition to convey certain lands upon the payment of a certain price, it will be deemed, in equity, an agreement to convey the land at all events, and not to be discharged by the payment of the penalty, although it has assumed the form of a condition only. Courts of equity in all cases of this sort look to the substance of the transaction, and the...