Cook v. Southern Pacific R. R, Co.

COOPER, J.

This action was brought to recover $1,600, with interest, claimed to be due plaintiff from defendant, under the terms of four separate but similar contracts for the sale of land, in each of which the defendant was the vendor and the assignor of plaintiff was the vendee. Judg

[688]

ment was entered for plaintiff upon findings made by the court, and from the judgment defendant prosecutes this appeal on the judgment-roll and a bill of exceptions. Each of the contracts contained the following provision, to wit: “It is further agreed, between the parties hereto, that the party of the first part claims all the tracts hereinbefore described, as part of a grant of lands to it by Congress of the United States; that patent has not yet issued to it for said tracts; that it will use ordinary diligence to procure patents for them that as, in consequence of circumstances beyond its control, it sometimes fails to obtain patent for lands that seem to be legally a portion of its said grant, therefore, nothing in this instrument shall be considered a guarantee or assurance that patent or title will be procured; that in case it be finally determined that patent shall not issue to said party of the first part for all or any of the tracts herein described, it will, upon demand, repay (without interest) to the part—, of the second part, all moneys that may have been paid to it.” Each contract is pleaded as a separate cause of action. In each count it is alleged that it , has been finally determined that patent shall not issue to defendant for an undivided moiety of the land described in the contract, and also that defendant has not exercised ordinary diligence to procure a patent to the land. The evidence showed, and the court found, that after the commencement of the action a patent was issued (in November, 1903) to defendant for the lands described in the complaint. It is therefore unnecessary to discuss the issue as to a patent not having been granted to defendant. The court found that the defendant “did not and has not used ordinary diligence to procure a patent to the lands mentioned in said contract, or in any of them, or any part of said lands.” It was (the above-quoted finding upon which the court below gave judgment in favor of plaintiff, and upon the question as to whether or not the said find, ing is supported tby the evidence the case must here be decided.