Smith v. Blandin

CHIPMAN, C.

Action to rescind a certain agreement between plaintiff and defendant for the sale of land. Defendant demurred to the complaint, on several grounds; his demurrer was overruled, and defendant declining to answer, the court gave judgment for plaintiff. Defendant appeals from the judgment, by bill of exceptions.

Plaintiff alleged ownership and possession of the land; that on June 30, 1898, plaintiff and defendant entered into the contract in question, which is set out in the complaint. By the terms of the contract, plaintiff agreed to sell the land to defendant by bargain and sale deed, free from all encumbrances, “ upon his demand, and payment therefor as herein provided.” The tract consisted of 2,231.42 acres, and the entire

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purchase price was $400,000; the consideration mentioned was one dollar, receipt of which was acknowledged, “and of the further payment of $100,000 on or before October 30, 1899, in installments of $10,000 each, beginning on the thirtieth day of October, 1898, and continuing on the thirtieth day of each and every month until said $100,000 was fully paid, and the further payment of $75,000 on or before October 30,1900, and $75,000 on or before October 30, 1901, and $75,000, October 30, 1902, and $75,000, October 30, 1903, making, in all, $400,000.” ' Interest was to be paid annually thereon, at 6-J per cent. There were stipulations in the contract, that as payments were made plaintiff was to convey a part of the land. Upon the first payment being made as agreed, plaintiff was to convey land at the rate of $250 per acre, in a certain part of the tract, “as may be elected or selected by” defendant, and so as to other payments, certain parts of the tract being designated out of which defendant was to make his selection. It was alleged “that the only consideration for the said contract received by this plaintiff was the promise and agreement on the part of defendant, Charles F. Blandin, to pay to this plaintiff the sums of money mentioned and specified in said contract at the times and in the amounts in said agreement specified ”; that the first installment became payable October 30,1898, but was not paid and has not been paid, “nor has he, said Blandin, at any time offered to pay said sum, or any part thereof; that through the fault of him, said Blandin, the consideration for said contract has failed.” It is further alleged that the promises of defendant “were the considerations for the said agreement, and this plaintiff, in consideration of such promises and agreements, and not otherwise, made and executed said contract; that plaintiff believed and relied upon said promises and agreements made by said Blandin, and thereby he was induced to and did make and deliver said contract to him, said Blandin. And the plaintiff on information and belief alleges that said Blandin, at the time of making said agreements, had no intention to perform the same; that plaintiff has faithfully kept and performed said contract, and has at all times since the making thereof been ready, able, and willing to do and perform each and every act and thing therein and thereby required to be done and performed by him; that on the first day of November, 1898, plaintiff notified said Charles F. Blandin that he rescinded the said contract, and the whole thereof, and at the same time