ment of money in Salt Lake City, not at Scofield, where the contract was to be performed. This conclusion is further borne out by the fact that it was not shown at the trial, nor was there any claim made, that Braffett was at Scofield on the day when final payment was to be made, January 25, 1905, to receive his money and to perform his part of the contract, or that he either left or deposited a deed at Scofield to be delivered to Roberts on payment by him of the balance of the purchase price. Now it must be conceded that Braffett could not arbitrarily change the place of perform ance of the contract and put Roberts in default because he failed to comply with a demand made for money at a place different from that fixed by the contract.

In the discussion of this case and in the application of legal principles to the questions involved, it must be borne in mind that it is not a case where the vendee has refused to proceed further under the contract and has signified his intention to no longer be bound by its terms, thereby relieving the vendor of his obligations to perform or offering to perform his part of the contract, but it is a case in which the whole course of conduct of the vendee in relation to the transaction since he entered into possession of the premises shows that it has been his intention all along to ultimately pay for the land and acquire a title thereto. In the opinion written by Mr. Justice Straup, it is said that: "The evidence further shows that until plaintiff deposited the money with the clerk of Carbon county, no demand or request had been made by him for a deed, nor did the defendant ever make an actual tender." The fact is that the defendant at no time made any kind of a tender whatever, either actual or otherwise. In going through the record in this case we look in vain for any evidence which tends to show that Braffett at any time or place had a deed made out ready for delivery to Roberts upon payment by the latter of the unpaid purchase price of the land. In fact, so far as the record shows, Braffett, in all of his correspondence and personal interviews with Roberts respecting the matter in controversy, never mentioned a deed but once, and that was in his letter of

July 6, 1903; and the reference therein made is as follows: "I wish you would drop me a line and inform me as to whether you desire to pay the note and secure the deed." This was not a tender, nor in any sense an offer to perform. As hereinbefore stated, the contract was to be performed at Scofield. It was not shown, nor is it claimed, that Braffett was at Scofield to receive the money, surrender the note and deliver to Roberts a deed to the land; nor did he designate any person at that place to whom Roberts could pay the money and from whom he might take up his note and receive a deed to the land. Therefore Roberts could not have paid the money at Scofield on the day mentioned, because, as stated, there was no one there authorized to receive it. And he was under no legal obligations to pay the money at any place other than that fixed by the contract. True, Roberts had agreed to pay the money at Scofield on the date mentioned, and Braffett, likewise, had agreed to surrender the note and deliver a deed to Roberts upon payment of the money. But both defaulted, and neither of them was there, either in person or by representative, to carry out the contract. Therefore neither Roberts nor Braffett was in a position to rescind and terminate the contract, for the reason that neither of them had tendered performance. In other words, by failure to perform, or offering to perform, each of the parties waived performance of the contract on that date. (Van Campen v. Knight, 63 Barb. [N. Y.] 205.) It, therefore, necessarily follows that at the time Roberts made the deposit hereinbe fore mentioned with the clerk of Carbon county the con tract was still a valid, alive, and subsisting one, and not dead as suggested by Mr. Justice Frick, in his concurring opinion. (Pomeroy, Con. and Spec. Perf., 404, 405; Leaird v. Smith, 44 N. Y. 618; Raymond v. San Gabriel L. & W. Co., 53 Fed. 883, 4 C. C. A. 89.)

For the reasons herein stated, I am of the opinion that the cause should be reversed, with directions to the trial court to enter judgment for the plaintiff as prayed for in his complaint.

BRIXEN v. JORGENSEN et al.

A

No. 1856. Decided December 4, 1907 (92 Pac. 1004). 1. WATERS-IRRIGATION-WATER RIGHTS-SALE COMPUTATION. contract for a sale of land also provided for a conveyance of four shares of water to July 1st in each year, and two shares after that date. Two of the shares which continued after July 1st were first-class rights, and the two shares terminating on July 1st were third-class rights. Thereafter, an equalization of all the rights of the water corporation was had, whereby the first-class rights were increased five per cent. and the third-class rights reduced 33 1-3 per cent., and the sum of the shares, when so reduced and multiplied by 2, represented the amount of water each owner was entitled to in the corporation. Held, that the shares to which the vendees were entitled under such contract were 6.86 2-3, and not 6 2-3 shares as found by the trial court.

2. EVIDENCE-PAROL EVIDENCE-RECEIPT. A contract for the sale of land and water rights recited the receipt by the vendor of $850 in part payment; that the whole consideration was to be $3,000. The contract also contained an added note acknowledging receipt of payment on the agreement "down to $1,800." Held, that the contract, in so far as it recited the amount remaining unpaid, was only a receipt, and that parol evidence was admissible to show that the amount actually received was less than that stated. 3. VENDOR AND PURCHASER-TENDER OF DEED-NECESSITY. Where a contract for the sale of land only required tender of a deed on final payment, and it was alleged that defendants refused to make further payments because of their claim to more water than they were entitled to under the contract, a complaint to recover the unpaid portion of the price, and to foreclose the vendor's lien therefor, was not defective for failure to allege a tender of the deed.1

4. APPEAL-REVIEW

DISPOSITION OF CAUSE REVERSAL IN PART. Where, in a suit to recover the balance of the purchase price of land and to foreclose a vendor's lien, it appeared that the parties were at variance regarding the quantity of water sold, and that had plaintiff offered to deliver the true quantity to which defendants were entitled it would have been refused, but the court erred slightly in determining the amount of water to which defendants were entitled to their prejudice, and in refusing to allow damages for withdrawal of such excess over the amount defendants received, a decree in favor of plaintiff would be reversed only to the extent of the adjudication of such water rights, so as to permit defendants to recover the actual amount to which they were entitled, together with damages.

1 Thompson v. Whitney, 20 Utah 1, 57 Pac. 429.

33 Utah-7

APPEAL from District Court, Salt Lake County; C. W. Morse, Judge.

Action by Johannah Brixen against Elsa Jorgenson and another. From a judgment for plaintiff, defendants appeal. REVERSED WITH DIRECTIONS.

S. P. Armstrong for appellants.

Max Brown and W. H. King for respondent.

FRICK, J.

The subject-matter of this action has been before this court in another form as appears from 28 Utah 295, 78 Pac. 674, 107 Am. St. Rep. 720. The action then was one of ejectment by this plaintiff against these defendants, and was based upon the theory that the contract upon which this suit is based had been violated by the defendants, so that the plaintiff might rescind it, and be repossessed of the land and water right the subject-matter of the contract. This right was denied to the plaintiff by this court, and she now sues to recover the unpaid purchase price, and, in default of payment thereof, to subject the land to sale as upon a foreclosure of a mortgage or vendor's lien. The contract sued upon, and under which the defendants went into and are in possession, was produced at the trial by the defendants, and is in form both a receipt and contract, and, so far as material here, reads as follows: "Received of Soren K. Jorgensen the sum of eight hundred and fifty ($850) dollars cash in part payment for about four and one-half (41) acres of ground together with all improvements thereon and four (4) shares of water to July 1st of each year and two shares of water after the first day of July of each year, said land being situate to be more fully described in deed and abstract showing good title which is to be delivered upon final payment. The whole consideration is to be three thousand ($3,000) dollars, the balance or remaining sum of twenty-one hundred and fifty dollars is to be paid as follows, to wit: Six hundred and fifty ($650) dollars on or before March 1, 1902, and fifteen

hundred ($1,500) dollars on or before March 1, 1905; all deferred payments are to draw six per cent. interest, payable quarterly. Possession is to be given to said Jorgensen upon the payment of the further sum of six hundred and fifty ($650) dollars above set forth to be March 1, 1902. Johannah Brixen. Received payment on this agreement down to 1,800 dollars. Johannah Brixen."

The plaintiff alleges in her complaint that there was due as principal and interest on the contract the sum of $2,088.33, and for taxes and insurance paid by her for the use of the defendants the further sum of $72.40, making the whole amount due for which she prayed judgment the sum of $2,160.73, with accrued and accruing interest. The defendants answered jointly, but we shall hereafter deal only with the defendant Soren K. Jorgensen, as the contract was made with him alone, and the other defendant was made a party only because she was the wife of the principal defendant, and thus had a dower claim in the premises. The answer contained a copy of the contract above set forth, but denied that the amount claimed by the plaintiff remained unpaid thereon; alleged the failure of the plaintiff to furnish the defendant an abstract of title and with a failure to deliver the amount of water called for by the contract, and pleaded various matters as counterclaims. Upon a trial to the court, findings and conclusions of law were made in favor of the plaintiff, and a judgment rendered in her favor for the sum of $2,295.07, and, in default of payment, the property was ordered sold as upon a decree of foreclosure of a mortgage. The plaintiff was also required to furnish the defendant with a complete abstract showing title in the plaintiff, and, upon receipt of the money, to deliver to the defendant a good and sufficient deed warranting the title to the property. From these findings and decree the defendant appeals.

We will notice only such errors as we deem material. The first one to be noticed is that the court erred in computing the amount of water that should be delivered by the plaintiff to the defendant under the terms of the contract. That clause of the contract, which relates to the amount of water, is as