Smalley v. Holt

WORKS, J.,

pro

tem.

This is an appeal from the judgment.

On June 29, 1911, respondent and appellant Holt entered into an agreement for an exchange of real property, together with the passing of certain mortgages and cash considerations as a part of the trade. The sum of three thousand dollars was agreed by respondent to be paid to Holt when certain abstracts and certificates of title were brought down to date,

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and it was further provided, “$750.00 in cash is to be paid to H. R. Holt on this agreement on or before July 3rd, 1911, which amount is to be credited and taken out of the $3,000.00 hereinbefore mentioned in this agreement.” On July 1st Smalley paid to appellants the sum of $750 and they executed to him a document in the following form:

“Received from M. E. Smalley the sum of seven hundred and fifty dollai’s, which is the first cash payment mentioned in contract made and dated June 29th, 1911, by and between H. R. Holt and M. E. Smalley.

“It is hereby distinctly understood and agreed by H. R. Holt and Florence M. Wendell that in case said Holt is unable to comply with the terms of said contract within a reasonable time and within thirty days from this date, the said $750.00, without interest is to be returned to M. E. Smalley.”

Florence M. Wendell was a party to the receipt, and is a party to the action only because the property agreed in the first contract to be conveyed to Holt was actually to be conveyed to her to hold for him.

The action was commenced to recover the $750 paid to appellants, upon the ground that Holt was unable, up to the time of filing the complaint, which was on September 11, 1911, to comply with the terms of the original agreement by him to be performed. The complaint alleges that Smalley kept and that Holt did not keep all the covenants of the contract of June 29th by them respectively to be performed, thus apparently holding to the idea that the action was based upon that contract. The trial court found for respondent on these issues, and appellants insist that the finding is not supported by the evidence. Respondent rejoins that the allegation of his performance and of Holt’s nonperformance under the contract of June 29th was surplusage and therefore immaterial, that the action is really based on the paper executed July 1st, and that the complaint states and the evidence proved a cause of action under it. Upon which of these agreements was the cause of action founded?