Barsolou v. Newton

McKee, J. This was an action to enforce specific performance of a contract made by the defendants jointly, for the sale [224]and. conveyance of a lot of land in the toAvn of Woodland to Andmv Weaver, the grantor and assignor of the plaintiff. Scliardin, one of the defendants, admitted all the allegations of the complaint, and averred his readiness to perform the contract; but his co-defendant NeAAdon denied the allegations, and averred that the plaintiff AAras not entitled to performance of the contract, because, by a subsequent paroi agreement between Weaver and the defendants, Weaver AA'as not to receive a deed under the contract until he paid for certain lumber and materials, Avhich were furnished to him for constructing improvements upon the land Avhich he had purchased.

It appears from the record that the defendants sold the land to Weaver on the 8th of October, 1877, for six hundred and tAArenty-five dollars, and executed and delivered to him their agreement in Avriting for a good and sufficient deed, upon payment of the purchase money, on or before October 8, 1879, Avith interest at the rate of one per cent per month, payable every three months; and to secure payment of that sum Weaver gave them his promissory note, payable on or before the 8th of October, 1879.

Upon the completion of the contract Weaver, by the consent of the defendants, entered upon the land, made valuable improvements upon it, and, in part performance of his contract, paid defendants betAveen the 21st of January, 1878, and the 13th of October, 1880, the sum of five hundred and twenty-eight dollars and fifty cents. Upon receiving the payment of October 13, 1880, the defendants apportioned the amount between themselves, Schardin received his portion as the complement of his share of the purchase money, and NeAvton consented that Weaver should have his own time to pay the remainder, if he paid promptly the interest as it became due. On September 17, 1881, Weaver paid Newton one hundred dollars, Avhich the latter received and indorsed upon the note. Every year, also, Weaver paid the taxes Avhich Avere levied upon the land, except the taxes for the last year, Avhich Avere voluntarily paid for him by NeAvton.

Soon after the last payment the improvements Avhich had been built upon the land Avere destroyed by fire. Weaver then offered the land for sale, and on November 11, 1881, he pre[225]