Tozer v. George

HARRISON, J. The plaintiff and the defendants entered into an agreement July 19, 1892, by which the plaintiff agreed to sell and convey to the defendants a certain parcel of land for the sum of fifteen hundred dollars, and in consideration thereof the defendants agreed to pay said sum of money to the plaintiff “at the time and in the manner hereinafter mentioned, to wit, one hundred and seventy dollars upon execution hereof, the receipt whereof is hereby acknowledged, and the balance of thirteen hundred and thirty dollars payable as follows, to wit: twenty dollars on the first day of each and every month thereafter until said principal sum of fifteen hundred dollars has been fully paid in accordance herewith. The privilege is reserved to second party [651]to pay more than said stipulated payment of twenty dollars at any time during the continuance of this contract.” The present action is brought for the purpose of having the court determine the amount unpáid upon the agreement, and fix a time within which said amount shall be paid, failing in which the defendant shall be foreclosed of all interest and right in the land. It is alleged in the complaint that “defendants have not paid any money under said contract, or in accordance with the terms and conditions thereof, since November 2, 1895.” Ho other breach of the agreement than in the payment of the purchase price of the land is charged by the plaintiff. The defendants demurred to the complaint for want of facts to constitute a cause of action, and also for ambiguity, in that “it does not show the amount actually paid on the contract therein set out by said defendants, or the amount due and unpaid, or that the said defendants are in default in the payment of any of the installments provided for in said contract.” Their demurrer "was overruled, and the cause was heard by the court as upon their default, and judgment rendered determining that the balance due under said contract, April 1, 1896, is the sum of three hundred and forty dollars, and that there will be twenty dollars further due on the first of each month thereafter, and giving to the defendants six months after the entry thereof in which to pay the amount found to be due, failing in which, and in the further payment of twenty dollars on the first of each month thereafter, their rights in the premises should be foreclosed.

The court should have sustained the demurrer to the complaint. The only breach therein alleged of the defendants’ agreement is that they had not paid any money in accordance with the terms of the contract since November 2, 1895. The complaint does not, however, allege the amount of money that had been paid prior to that date, nor does it contain any allegation from which it can be determined whether at the date of commencing the action the defendants were in default. While the agreement provided for payments of twenty dollars each on the first of each month, it also provided that the defendants might at any time pay more than this sum, and the plaintiff should have averred the amount that had been paid, so that the court might determine upon the face of the complaint whether the defendants were in default.