Briles v. Paulson

SLOSS, J.

The plaintiff brought this action to obtain a decree declaring that the rights of the defendant under a certain written contract were terminated. The contract was executed by the plaintiff and one J. J. Payseur. The defendant, Paulson, is the assignee and successor in interest of Payseur.

By the terms of the contract, which was dated December 5, 1910, Briles, in consideration of a payment of one hundred dollars, granted to Payseur the option of purchasing certain lands in Modoc County for seventeen thousand dollars, at any time up to December 31, 1915. Payseur was to have a subdivision of the land made, and prices aggregating seventeen thousand dollars were then to be put upon the various

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parcels, such parcels to be subject to separate purchase at the prices thus fixed. Payseur, if he exercised his option to purchase all or any of the land, was to pay one-fourth of the price in cash, and the balance in installments as provided in the agreement. Payseur was- given the right to make sales to third parties, he to receive all of the purchase price above the sums (aggregating $17,000), which were to go to plaintiff.

By the agreement the second party (Payseur) “agrees that he will raise the dam upon the reservoir situated upon the aforesaid lands to a height of twenty-five feet and will construct the same of substantial width and of sufficient solidity to withstand water pressure so that the water contained in said reservoir shall not be liable to burst therefrom. Said reservoir to be completed on or before November 1st, 1911.” There was a further provision that if the party of the second part, his heirs or assigns, should fail, neglect, or refuse to carry out and perform each and every agreement contracted to be performed by him, the party of the first part (Briles) might, at his option, declare the agreement terminated and annulled except as to parcels already contracted to be sold.

In June, 1911, Payseur assigned the contract to the defendant Paulson, and on October 5, 1911, Briles and Paulson executed a writing modifying the clause of the main contract relative to work on the dam. By the modification it was provided that Paulson should, on or before November 20, 1911, widen the dam “fifteen feet and raise said dam, when thus widened, four feet higher than present dam.”