(12 Idaho, 588) HUNT V. CAPITAL STATE BANK (GODLOVE et al., Interveners). (Supreme Court of Idaho. Sept. 4, 1906. On Rehearing, Jan. 5, 1907.)

1. VENDOR AND PURCHASER - PERFORMANCE OF CONTRACT-MONEY DEPOSITED-PAYMENT UNDER AGREEMENT.

Where H. enters into an agreement with H. and G., whereby it is agreed that H. will pay $7,100 for a certain mining claim, and pays in cash $100 thereof, and agrees that the balance shall be due February 3, 1905, and that H. will pay the expenses for procuring a patent to said mining claim, and that time is of the essence of the contract, and that thereafter on February 3, 1905, II. deposited the $7,100 with the bank, as provided by the escrow agreement, with instructions to hold the same until the receiver's receipt for the patent of the mining claim has been issued, and thereafter the receiver's receipt is procured and filed with said bank by II. and G., held that the bank was justified in paying the money over to II. and G. after said receipt was so procured. 2. SAME MINES AND MINERALS-PURCHASE OF MINING CLAIM-CONTRACT.

Where, under said agreement, H. agreed to pay the cost of procuring the patent to said mining claim and H. and G. proceeded and procured the patent, held that H. is liable for the cost of procuring the same. 3. SAME.

Where several writings constitute one contract, such writings must be construed together. [Ed. Note.-For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 746-748.]

4. SAME.

Where one party to a contract has fully carried out his part thereof, and the other party has paid the consideration for the property involved, and there remains on his part the obligation to pay the expenses of procuring a patent to the mining claim involved, a judgment against him for that amount will not be disturbed on appeal..

(Syllabus by the Court.)

Appeal from District Court, Ada County; George H. Stewart, Judge.

Action by Frank W. Hunt against the Capital State Bank. S. C. Godlove and S. A. Hindman intervene. Judgment for defendants, and plaintiff appeals. Affirmed.

Alfred A. Fraser, for appellant. Ira E. Barber, for respondents. Johnson & Johnson, for interveners.

SULLIVAN, J. This action was brought by the appellant to recover from the defendant bank $7,000, together with interest thereon, the principal sum of which had been deposited in the said bank for the benefit and use of the interveners, upon an agreement or option for the purchase of the Buffalo quartz mining claim, situated in the Thunder Mountain mining district, Idaho county. On the 3d day of November, 1904, the appellant and the interveners entered into the following agreement: "Warrens, Idaho, November 3, 1904. In consideration of one hundred dollars, the receipt of which is hereby acknowledged, we, the undersigned, owners of the Buffalo quartz mining claim, situated on Thunder Mountain, Idaho county, Idaho,

hereby agree to sell said claim to F. W. Hunt of Boise, Idaho, for a price of seven thousand ($7,000.00) dollars, to be paid to our order at the Capital State Bank, at Boise, Idaho, on or before the 3rd day of February, 1905, and that we will execute and deliver deeds for said property at the said bank to said F. W. Hunt, and will agree that the title to said property shall be good, and will proceed without delay to the survey and patent of said Buffalo claim, the said F. W. Hunt or assigns to pay the costs of patenting excepting the preliminary survey. [Signed] S. A. Hindman, S. C. Godlove." Thereafter, on the 2d day of December, 1904, a deed to said mining claim was placed in escrow with the defendant bank, to be held and to be delivered to the appellant according to the following instructions, deposited with the bank at the time of depositing said deed, to wit:

"Placed in escrow in the hands of the Capital State Bank to be delivered to F. W. Hunt, if he shall make all the payments as below specified, otherwise, to be subject to the order of S. C. Godlove and S. A. Hindman of Warrens, Idaho.

"There will be no obligation on the part of S. C. Godlove and S. A. Hindman to deliver above-described deed unless payments are made as above, time being the essence of the agreement."

On the 3d day of February, 1905, appellant paid into said bank $7.000 to the credit of the interveners, and at the same time delivered to the bank the following writing, to wit: "Agreement dated November 3, 1904, between S. C. Godlove, S. A. Hindman to F. W. Hunt. Filed at request of F. W. Hunt, February 3, 1905, to accompany escrow agreement between above parties dated December 2, 1904. To the Capital State Bank of Idaho, Ltd. Payment of $7,000.00 being made this 3d day of February, 1905, to S. C. Godlove and S. A. Hindman by F. W. Hunt, in accordance with the terms of said escrow agreement and said agreement of November 3, 1904, you are hereby instructed to hold said amount until receiver's receipt in application for patent of said Buffalo claim. has been issued. F. W. Hunt." Thereafter the interveners proceeded with their application for a patent and on the 21st day of October, 1905, the intervener Hindman presented the receiver's final receipt for the sum of $105, that being in full payment for the area of land embraced in said Buffalo lode mining claim. On the 27th day of October, 1905, the appellant delivered to the bank the following notice in writing: "Boise, Idaho, October 27, 1905. The Capital State Bank, Boise, Idaho. Gentlemen

I hereby notify you not to deliver or pay over to Godlove & Hindman, or either of them, or their assigns, the seven thousand dollars which you hold in escrow for the purchase of the Buffalo quartz claim in Thunder Mountain mining district, Idaho county, state of Idaho, as the terms of their contract with me were not carried out. Very respectfully, F. W. Hunt."

It appears from the testimony of the appellant, who testified at the trial of the case, that if he failed to make the payment of $7,000 on the 3d of February, 1905, the option of purchase expired; that he saw one of the interveners about getting an extension for the payment of that sum, and was informed that the affair was entirely in the other intervener's hands, and whatever he did in regard to the matter would be satisfactory to him; that he failed to get an extension of time; that the option would expire on the 3d of February if the payment was not made, having failed to get an extension of time. The appellant then testified as follows: "I went to the bank on the 3d of February and I paid this $7,000. At that time the proceedings towards procuring a patent had not been completed. That was the reason that I asked for an extension of time. When I first got the option, we talked over the patent proceedings, and Mr. Hindman told me he was going right into Roosevelt to make the preliminary survey of the 'Buffalo,' and that it would take him only a few days; that he would come right out with his application for patent; it would be well under way and perhaps completed by the 3d day of February, 1905. *

*

I knew this proceeding had not been completed at this time." It is apparent, from the testimony in the record, that the proceedings for a patent were not completed as early as the parties had anticipated, and that the appellant desired the bank to hold the money until the final receivers' receipt was issued for the land included in the Buffalo lode claim, thus making sure of a perfect title thereto. Apparently the interveners were satisfied to leave the money in the hands of the bank, as requested by the appellant. They thereafter procured said final receipt and deposited it with the bank, and the bank thereafter turned them over the $7,000. There is some conflict in the testimony of the appellant and of the cashier of the bank as to conversations had between them. The trial court evidently concluded to accept the evidence of the cashier as true, and made findings of fact, conclusions of law and entered judgment in favor of the bank and the interveners. There appears to be a substantial conflict in the evidence, and where that appears, the appellate court will not disturb the judgment of a trial court.

The main contention of counsel for appellant is that said option expired on the 3d

day of February, 1905, as the payment of the said $7,000 on that day was not an absolute payment. From all of the evidence in the case, it is clear to us that it was an absolute payment of the $7,000. The intervener Hindman testified on the trial that he received a letter from the appellant in which the appellant notified him that he had made payment on the 3d day of February, 1905. The appellant testified that the expense of procuring the patent was not paid by him at the time of paying the $7,000, because the expense for procuring the patent was not known at that time. He also testified that he told the cashier of the bank, at the time he paid the $7,000, that after the receiver's receipt for the Buffalo claim was obtained, he, the cashier, could pay it to Godlove and Hindman. That being true, the bank was fully justified in paying said $7,000 over to the interveners, after the receiver's receipt was presented to its cashier.

It appears from the testimony that one of the interveners had a conversation with the appellant on the 19th of October, 1905, in which the former informed the appellant that he had received the final receiver's receipt, and at that time showed the same to the appellant, with an itemized account of the expenses or cost of procuring the patent; that the appellant looked them over and passed them back to the intervener and said, "It seems as though everything is all right"; that at that time the appellant informed the intervener that he was going away and would like it if the interveners did not make a demand on the bank for the money before he returned; that the appellant also said that it took so much time to get the receiver's receipt that he thought there ought to be some concession made to him, but did not say just what he wanted. The intervener saw the appellant again on the following Monday or Tuesday, and told him that he wanted to go down to the bank and straighten the matter up; that appellant informed him that he would like to have a discount of 10 per cent. and the cost of the patent remitted, and the intervener replied that they had fulfilled their contract and were entitled to their money without any discount or concession of any kind. Thereafter he had another conversation with the appellant, and appellant offered to straighten the thing up and release the money in the bank if he would give him $100 and the cost of the patent, and the intervener replied "that he could do that."

The cashier of the bank testified as a witness on behalf of the appellant, and testified that the final receiver's receipt was filed and deposited with him on the 21st or 22d of October, 1905, when one of the interveners came to the bank and produced the final receiver's receipt and asked for a completion of the agreement in accordance with the escrow agreement. The cashier replied that "he would rather see the appellant, and for them to come in together"; and shortly thereafter

he saw the appellant and informed him that said intervener was in the city, and had presented the receiver's receipt; that the cashier went and got the papers and said to the appellant that, "under the circumstances, he saw nothing to do but to comply with the agreement and pay the money"; that appellant agreed with him; that appellant said to the cashier, "that if the envelope [on which was written the escrow agreement] could just be lost some way, that might afford some relief"; that in a conversation with appellant he expressed a desire to get some allowance made on the part of the intervener, in the nature of a concession, and he had about 12 conversations with appellant during a term of about two weeks in regard to the matter, and clearly indicated a desire to get some concessions from the interveners, and requested the cashier to defer the matter along from day to day; and the cashier did so, hoping that the matter would be amicably adjusted; that he thereafter submitted the matter to his attorney, who investigated the matter, and advised him to pay the money over to the interveners, and the money was paid over. The witness further testified: That he knew that appellant was trying to get some concessions from the interveners, but when he found the money had been paid in accordance with the instructions, about the first remark he made to the cashier was as follows: "I could have had something over $200." Thus intimating that he could have procured some concessions, if the payment had not been made at that time.

It is clear to me, from the foregoing, that the appellant considered the transaction closed and was endeavoring to get some concessions. It is contended by counsel for the appellant that the payment of the money on February 3d, with instructions not to pay it over until the receiver's final receipt was filed with the bank, was a change in the escrow. Conceding, for the sake of argument, that that was so, the consent of the interveners to allow the money to remain in the hands of the escrow holder, pending the issuance of the receiver's receipt, was no waiver of their rights. However, as we view it, the money was absolutely paid on the 3d day of February, 1905. The writing of February 3d deposited in escrow became, upon acceptance of its conditions by the interveners, merged in the contracts between the parties, and the contracts thus merged and modified must be construed as a whole. Utley v. Donaldson, 92 U. S. 29, 24 L. Ed. 54. All the writings connected with this transaction may be construed together as one contract. It is clear that the interveners consented to leave the money on deposit until the receiver's receipt was finally obtained. And thereafter said receipt was obtained and the money paid. The consent of the interveners to not withdraw the money until the receiver's receipt was obtained, amounted to a

contract between the parties that the sale was completed, and that the costs of procuring the patent would be paid when the amount was ascertained. The interveners fully carried out their part of the contract, and the appellant carried out his to the extent of paying the $7,000, and was bound to pay the cost of procuring the patent when that amount was ascertained. The object of appellant in wanting the money to remain in the bank until the receiver's final receipt was obtained is apparent, and when such receipt was received, it is apparent that the appellant desired to get some concessions from the interveners. It was for that purpose that the appellant asked the bank to delay payment from day to day.

I think, under the facts of this case, the interveners are entitled to recover from the appellant the cost of procuring the patent to said mining claim. The judgment, therefore, must be affirmed. and it is so ordered with costs in favor of the respondents.

STOCKSLAGER, C. J., and AILSHIE, J.,

concur.

On Rehearing.

AILSHIE, J. A rehearing was granted in this case on the question of the liability of appellant, Hunt, to pay the sum of $439.65, the expenses incurred by the interveners in patenting the mining claims over which this litigation arose. After hearing the case reargued, and a further consideration thereof, we are satisfied that the original opinion should be modified to the extent of holding that the appellant is not liable for this expense of patent proceedings. Conceding that the agreement of February 3, 1905, was continued in force, we are still confronted with this proposition: Under the original contract the $7,000 and also the expense of procuring a patent was made payable at the same time and place, namely, at the Capital State Bank, Boise, Idaho, on February 3, 1905. Time was made the essence of the agreement. The payment of the $7,000 was not a full payment of the sum due on February 3d, or upon the date to which that payment was extended. On the other hand, a receipt and acceptance by the grantors of the amount paid, and their refusal to return or surrender the same, entitled the appellant, Hunt, to the deed, and legally relieved him from the payment of any further sum. The interveners had the right to reject the payment until the same was made in full, including both the $7,000 and the expense of patent proceedings. Under the conditions and circumstances surrounding this transaction, we do not think the grantors could accept a partial payment of a sum that it had been agreed should be paid at a given time and place and still withhold the deed and compel the grantee to pay the balance before receiving the deed. It would be otherwise if these sums constituted

separate installments or had been payable at different times. In that case the grantors might receive and accept one payment, and, upon failure of the grantee to make any subsequent payment according to the terms of the escrow, declare the forfeiture provided by the agreement and still retain the deed.

The former opinion of this court will be modified as above indicated, and the cause is hereby remanded to the trial court, with direction that the original decree entered herein be modified in accordance with the views herein expressed, to the effect that the interveners, Godlove and Hindman, be allowed to retain the money deposited by appellant with the respondent bank and by the bank paid to them, and that the deed for the mining property mentioned and described be delivered to appellant, and that no judgment be entered against appellant for or on account of expenses incurred in procuring patent. Appellant and interveners will each pay their own costs incurred on this appeal, and the respondent bank's costs will be divided equally between appellant and interveners.

Where a contract for the exchange of real estate provides: "Both parties to give warranty deeds and abstracts showing titles. It is agreed that $1,500.00 shall be liquidated damages in case either party fails or refuses to carry his part of this contract"-before either party can recover the stipulated amount of damages he must tender an abstract showing a perfect record title in himself free from doubt or outstanding color of title.

(Syllabus by the Court.)

Error from District Court, Bourbon County; Walter L. Simons, Judge.

Action by J. F. Denser against W. C. Gunn. Judgment for defendant, and plaintiff brings error. Affirmed.

A. M. Keene and Arthaud & Arthaud, for plaintiff in error. W. R. Biddle and Hubert Lardner, for defendant in error.

GREENE, J. This was an action to recover a stipulated amount of damages for the noncompliance with a written contract for the exchange of real estate. The contract contained provisions that: "Both parties to give warranty deeds and abstracts showing titles. It is agreed that $1,500.00 shall be liquidated damages in case either party fails or refuses to carry his part of this contract." The plaintiff executed and tendered a deed of general warranty in form, and also an abstract of title of the lands he had agreed to convey to the defendant, and demanded that defendant execute to him a warranty deed and abstract showing title in him for

the land which he had agreed to convey to the plaintiff. The defendant refused to accept the deed and abstract tendered him, and refused to convey the lands to the plaintiff as he had agreed, and the plaintiff brought this action. The court sustained a demurrer to plaintiff's evidence, and rendered judgment for costs for the defendant.

It appears from the evidence that, before the time fixed in the agreement for consummating this transaction by an exchange of deeds, the plaintiff's title to the lands he had agreed to convey to the defendant had been questioned. Thereupon he took his abstract to his lawyers to examine his title, and he was informed by them that it was defective, and that it would require an action to quiet the title in him. His attorneys instituted such proceeding making some 50 named persons and other unknown heirs defendants. The lands were situated in Iowa. Personal service was not obtained upon any of the defendants. In an action to quiet title under the Iowa statute service may be made by publication upon all defendants upon whom personal service cannot be made within the state. Before such service is authorized the Iowa statute requires the plaintiff to make and file an affidavit stating that personal service cannot be made upon the defendants within the state. The plaintiff in his action to quiet his title undertook to get service upon the defendants by publication for which purpose he filed an affidavit of which the following is a copy: "I, Jane E. Denser, being duly sworn, depose and on oath say, that some of the defendants hereto are nonresidents and personal service cannot be made on them in this state, that I have sought diligently to learn their residence and have been unable to find them." This affidavit does not comply with the requirements of the statute. It states that "some of the defendants are nonresidents, and that personal service cannot be made on them in this state." The plain inference from this language is that others were residents. The affiant did not swear that they were all nonresidents, and that personal service could not be made upon any of them in the state. Those who were residents and upon whom personal service could be made should have been so served. As to those who were residents of the state and upon whom personal service could have been made the judgment quieting title was void. The trial court very properly held that a publication notice based upon this affidavit did not give the Iowa court jurisdiction of all of the defendants named in the petition, and that a judgment rendered upon such service did not bar the defendants who were not properly served from setting up their title at any future time. Before the plaintiff could require the defendant to accept his deed, and before he can recover upon the agreement, he must show that he has fully complied with all the conditions on his part. He must have pre

sented such an abstract of title as upon its face showed the title to the land which he was offering to convey to be in himself. The record which is epitomized in the abstract must show a good title in the vendor. The contract called for a title good in fact and good of record, and this the abstract did not show. Before the plaintiff could recover, he must tender an abstract showing an unclouded title. Kimball v. Bell, 47 Kan. 757, 28 Pac. 1015; O'Neill v. Douthitt, 40 Kan. 689, 20 Pac. 493. It should show that the title is valid in every respect and not one that may be in the least clouded. Carter v. Improvement Association, Limited, 108 La. 143, 32 South. 473. When a defect in the abstract will cause a reasonable doubt in the mind of a prudent and intelligent person acting upon competent legal advice, the deed may be refused. Whether the abstract introduced in evidence by the plaintiff showed that he had a good title was a question of law to be determined by the court, and not one of fact to be submitted to the jury. The court held that, as a matter of law, the plaintiff's title was defective, that he had not complied with the terms of the contract, and was not entitled to recover. With this we agree.

In this view of the case the other errors complained of become immaterial.

The judgment is affirmed. All the Justices concurring.

(74 Kan. 884)

PIPER v. GUNN.

(Supreme Court of Kansas. Dec. 8, 1906.) Error from District Court, Labette County; Thos. J. Flannelly, Judge.

Action by John F. Piper against W. C. Gunn. Judgment for defendant, and plaintiff brings error. Affirmed.

E. L. Burton and E. C. Clark, for plaintiff in error. Biddle & Lardner (M. E. Williams, of counsel), for defendant in error.

PER CURIAM. This action was brought by the defendant in error to recover $500 paid upon a contract for the purchase of real estate and for damages. The contract was in writing and reads: "Parsons, Kansas, Oct. 9th, 1902. Received of W. C. Gunn, $500.00 being part payment on the N. E. 4 of sect. 10, and S. E. 14 sect. 3, range 32-20. All in Labette Co., Kans, price to be seventy-five hundred dollars, five hundred dollars now rec. and balance of $7,000.00 to be paid on or before 25th day of December 1902. I agree to furnish abstract showing good title, and make warranty deed to any person W. C. Gunn may desire, and send same to First National Bank of Fort Scott, Kansas, for collection, and give possession March 1st, 1903. John F. Piper. Mary F. Piper. W. C. Gunn is to take care of loan after November 1st, 1902." Prior to December 25, 1902, Piper furnished Gunn an abstract defective

in several respects upon its face, and, at the suggestion of Gunn, some of these defects were cured. As corrected the abstract showed that at least one moiety of the title which had been in several heirs was not in Piper. Information and notice aside from the abstract was also given to Gunn that a certain moiety of the title which by the abstract appeared to be in Piper was claimed to be in another. Also the evidence showed on the trial that at least one other moiety of the title which appeared to be owned by Piper was really held in trust by him for another, and that the equitable owner thereot had neither asserted nor relinquished the right thereto. The action was commenced in April, 1903, was tried without a jury, and the finding and judgment of the court was in favor of Gunn, allowing recovery of the $500 paid on purchase price, without damages.

It is contended on Piper's part that there is no allegation or proof that Gunn performed or tendered the performance of the contract on his part. It is sufficient to say that, so long as the abstract furnished by Piper showed his inability to convey good title by a deed from himself and wife, it was neither necessary nor prudent for Gunn to direct to whom the deed should be made, nor to tender payment of the remainder of the purchase price, nor, assuming it to be a part of the contract that he should pay interest on a loan secured by mortgage on the land to be conveyed, that he should pay interest which fell due thereon after November 1, 1902, and before the commencement of the action. Paraphrasing the language of this court in Denser v. Gunn, 87 Pac. 1132, decided at this session, before Piper could require Gunn to accept the deed of himself and wife, he must have presented such an abstract of title as upon its face showed the title to the land which by his contract he was obligated to convey, to be in himself. "When a defect in the abstract will cause a reasonable doubt in the mind of a prudent and intelligent person, acting upon competent legal advice, the deed may be refused." Denser v. Gunn, supra. See, also, authorities there cited. The judgment is affirmed.

(74 Kan. 164)

CITY OF TOPEKA v. JONES. (Supreme Court of Kansas. Nov. 10, 1906.)

On rehearing. Affirmed.

For former opinion, see 86 Pac. 162.

SMITH, J. After listening to the oral arguments made and a careful consideration of the briefs filed on the rehearing of this case, the position of the members of the court is not changed. not changed. The majority adhere to the opinion filed, and the dissenting justices adhere to their dissent.