Amacker v. Pankost

VAN DYKE, P. J. This is an appeal from a money judgment rendered by the court sitting without a jury in an action for breach of contract.

Appellants, sellers, and respondents, buyers, entered into a written contract for the sale and purchase of approximately 40 acres of unimproved land in the Lake Tahoe region of Nevada. The purchase price was $12,000 and the whole price has been paid and the property conveyed. The contract contained the following provisions: 111 The parties of the first part [sellers] shall cause water to be supplied to the above described property in sufficient quantity to supply not more than one home per acre; the parties of the second part [buyers] [745]to supply pipe lines on property in accordance with Utilities Commission ruling.” The controversy herein revolves around the quoted provisions. The complaint, pleading the contract by exhibit, alleged that the sellers had failed and refused to perform the contract on their part, “in that they have failed to cause water to be supplied to the property described in said contract.” Damages for this breach were asked in the sum of $8,000. The answer denied generally that the breach had occurred. The pretrial order stated the ease and the issues to be tried as follows:

“Action for damages for breach of contract to furnish water to real property.

“Plaintiffs contend that the defendants agreed to supply water to the real property sold to the plaintiffs by the defendants in sufficient quantity to supply not more than one home per acre; that the covenant in the sales contract to furnish water included the bringing of water to the plaintiffs’ property line by the defendants and at defendants’ expense.

“Defendants contend that the plaintiffs agreed to bear the cost of installing a water system necessary to bring water to the plaintiffs’ property line; and that until the plaintiffs provide the funds or furnish security therefor, and designate a water reception point on the property line, the defendants are not obligated to perform on their part.

“The parties agree that the plaintiffs will have to pay the reasonable costs of the water actually furnished and the expense of distributing the water in the 40 acre tract purchased from the defendants. ’ ’

The cause was tried and on January 13, 1958, the trial judge filed a memorandum opinion in which he proposed to resolve the issues stated in the pretrial order as follows: