Greathouse v. Daleno

CONREY, P. J.

On the twenty-fourth day of November, 1920, the plaintiff entered into a written contract with the defendant whereby the plaintiff agreed to level and grade a forty-acre tract of land owned by the defendant. The grade was to be such that water would flow thereon in certain specified directions. The plaintiff agreed to furnish at his own cost all labor, material, teams, machinery, appliances, and outfit for the work; to begin work not

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later than ten days from the date of the contract, and to fully complete and finish the same not later than January 1, 1921. Upon failure of the contractor in any material or substantial respect to perform any covenant or agreement contained in the contract, it was stipulated that the owner might at his option terminate the agreement, and that in such event the contractor should have no claim for any work theretofore done by the contractor. It was further provided that time is of the essence of the agreement and of each covenant thereof.

This is an action by the contractor to recover damages for breach of the contract in the manner stated in the complaint. It is alleged in the complaint: “That on the day of the execution of said agreement there was situated upon said land to be leveled and graded large numbers of oak and willow trees so situated as to prevent the proper leveling and grading of said lands, but which trees, the said defendant, at the time of the execution of said written agreement as a part of the consideration therefor and as an inducement unto plaintiff to enter into the same, agreed to immediately remove from the said land at his, the said defendant’s own cost and expense; that the said defendant thereafter commenced to remove said trees from said land, but that said trees are not yet removed so as to permit the proper leveling ■and grading of said lands, but on the contrary, the defendant still keeps and maintains on said lands large numbers of trees, without the removal of which the plaintiff cannot complete his said agreement for the grading and leveling of said lands; that by the terms of said agreement said plaintiff agreed to fully finish and complete the said grading and leveling not later than January 1, 1921; that plaintiff has not so completed the said grading and leveling, but has in all respects complied with said contract so far as was possible and would have completed said leveling by said last mentioned date had he not been prevented from so doing by the said failure of the said defendant to remove said trees; that the defendant, as plaintiff is informed and believes, wilfully and intentionally failed to remove said trees so that said contract could not be completed by the plaintiff by or not later than January 1st, 1921; that the plaintiff has at all times been ready, willing and able to perform his