Blahnik v. Small Farms Improvement Co.

SHAW, J.

The defendant appeals from the judgment.

The object of the action was to recover $2,556.94, alleged to have been.paid by the plaintiff, Catherine C. Blahnik, to the defendant as a part of the purchase price of certain lands which the defendant had contracted to sell to said plaintiff, which contract, it is alleged, was rescinded by the plaintiff because of the failure of the defendant to perform the covenants therein contained. The plaintiff Joseph is the husband of the plaintiff Catherine, and has no other interest in the ease.

The contract of sale was executed on June 28, 1913. By its terms the defendant agreed to sell to said plaintiff four lots of land, containing about twenty-five acres, in a subdivision known as “Small Farms Improvement Tract, division R,” for the sum of $3,750. It acknowledges the receipt of two thousand three hundred dollars of this price. The remainder was to be paid in installments of one hundred dollars each every six months, beginning on December 28, 1914, and continuing .until the whole was paid. The unpaid portion was to bear six per cent interest, payable semi-annually from the date of the contract. It contained the following stipulation:

‘1 The seller agrees that it will have the roads in said division ‘R’ constructed during the fall of 1913 after the rains or

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when the ground is able to be worked. And. construct the necessary bridges.”

The complaint sets forth the contract in full and alleges that the defendant failed and refused to construct the said roads; that, because of said failure and refusal, the plaintiffs, before the commencement of the action, rescinded the contract and demanded repayment of the consideration theretofore paid thereon, amounting to $2,556.94. Judgment was asked for the recovery of said sum of money.

The court found that all the allegations of the complaint were true and thereupon gave judgment for the plaintiff as prayed for. The answer denied the alleged failure and refusal to construct the roads referred to in the contract. Upon the trial the defendant claimed it had constructed the roads before the plaintiff attempted the alleged rescission. 1 The subdivision map of the tract in which the lots were situated showed two roads forty feet wide, beginning at the county road abutting upon the north side of the tract and leading south to and beyond the plaintiff’s lots. These roads afforded the only means of ingress and egress to and from the lots. Between these lots and the county road there was a creek running through the tract from east to west. It was necessary to build bridges over this creek in order to make these roads passable. Two other bridges were necessary at other points on these roads.