Argument for Appellant.

tification therefor separate and distinct agreements from the one which is the subject of the action, such separate agreements and any damages flowing from a breach thereof must be the subject of an independent action.

5. In an action growing out of an agreement for the sale of real property, one of the terms of which was the payment of taxes by the vendee, where defendant admits in an answer that he did not pay such taxes, and sets up as justification therefor that the vendor did not have authority at the time when the taxes became due to sell or dispose of the premises described in the written contract, such plea constitutes no defense to the action under the terms of the contract which provides that the vendor was under no obligation to convey the premises until the purchase money had been paid in full together with all taxes.

6. A would-be purchaser in possession of land under an executory contract for the purchase of the same is estopped from denying his vendor's title.

7. The proffer of an unexecuted and unacknowledged chattel mortgage and of unexecuted promissory notes, or the tender of the same in court, is not a compliance with the terms of a contract requiring the execution and delivery of such chattel mortgage and promissory notes.

8. Held, that the evidence fails to support the findings of the court, and the findings do not support the judgments.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. W. A. Babcock, Judge.

Actions to recover on breach of contract. Judgments for defendant. Reversed.

A. L. Fletcher, J. J. McFadden and W. A. Brodhead, for Appellant.

The demurrer to the answer should have been sustained, because the answer was filed in a summary proceeding to recover possession of real estate, and involved the consideration of three separate and distinct items of counterclaim, one of which was unliquidated and founded upon the negligence of appellant. (Hunter v. Porter, 10 Ida. 72, 77 Pac. 434; Ralph v. Lomer, 3 Wash. 401, 28 Pac. 760; Phillips v. Port Townsend Lodge, 8 Wash. 529, 36 Pac. 476; Owens v. Swanton, 25

Argument for Appellant.

Wash. 112, 64 Pac. 921; Carmack v. Drum, 27 Wash. 382, 67 Pac. 808.)

There was nothing in the answer to show whether respondent would rely upon contract or tort as the basis of his claims, since the answer set up a claim based on negligence and in the same paragraph set up an agreement to pay, and there was no statement of facts constituting his cause of action against appellant required by Rev. Codes, secs. 4168 and 4184-4187, and the approved forms and rules of pleading. (Moore v. Evans, 24 Ida. 153, 132 Pac. 971; First Nat. Bk. of Hailey v. Bews, 3 Ida. 486, 31 Pac. 816; McGuire v. Lamb, 2 Ida. 378, 17 Pac. 749; Swanholm v. Reeser, 3 Ida. 476, 31 Pac. 804.)

A mere statement of intention or a promissory expression made without intention to contract is not such an offer as may be turned into an agreement by acceptance. (9 Cyc. 276; Lakeside Land Co. v. Dromgoole, 89 Ala. 505, 7 So. 444; Perkins v. Westcoat, 3 Colo. App. 338, 33 Pac. 139; Higgins v. Lessig, 49 Ill. App. 459; Stagg v. Compton, 81 Ind. 171; Phillips v. Van Schaick, 37 Iowa, 229; Marsh v. Tunis, 39 Mich. 100; Bolles v. Walton, 2 E. D. Smith (N. Y.), 164.) The lack of authority on part of appellant to convey was no excuse for respondent's failure to perform strictly as he had agreed in his contract. (Rischar v. Shields et ux., 26 Ida. 616, 145 Pac. 294.) A would-be purchaser in possession of land under an executory contract for the purchase of the same is estopped from denying his vendor's title. (Page v. Bradford-Kennedy Co., 19 Ida. 685, Ann. Cas. 1912C, 402, 115 Pac. 694.)

A plea of tender cannot be supported, by the payment of the money into court. Ala. 310.)

unless accompanied (Park v. Wiley, 67

There was no tender of chattel mortgage. A plea that the defendant was ready and willing to perform or deliver the articles at the time and place stipulated is insufficient. Readiness does not amount to a tender. (Brooklyn Bank v. De Grauw, 23 Wend. (N. Y.) 342, 35 Am. Dec. 569.),

Argument for Respondent.

Offer of a certain sum in satisfaction of an unliquidated claim does not operate as a legal tender if refused. (McDaniels v. Bank of Rutland, 29 Vt. 230, 70 Am. Dec. 406; San Pedro Lumber Co. v. Reynolds, 121 Cal. 74, 53 Pac. 410.)

A tender of less than amount due is bad. (Rose v. Duncan, 49 Ind. 269; Barnes v. Greene, 30 Iowa, 114; Call v. Lothrop, 39 Me. 434; Martin v. Whisler, 62 Iowa, 416, 17 N. W. 593.)

In the case of a conditional sale, the loss of the property sold falls upon the purchaser. (Harley & Willis v. Stanley, 25 Okl. 89, 130 Am. St. 900, 105 Pac. 188; Burnley v. Tufts, 66 Miss. 48, 14 Am. St. 540, 5 So. 627; Osborn v. South Shore Lumber Co., 91 Wis. 526, 65 N. W. 184.)

The covenant to convey and to pay the first instalment were not concurrent. In the sale of land upon instalments it is only the payment of the last instalment and the delivery of the deed that are mutually concurrent and dependent obligations, and no tender of deed is necessary. (Rischar v. Shields, supra; Brentnall v. Marshall, 10 Kan. App. 488, 63 Pac. 93; Voight v. Fidelity Inv. Co., 49 Wash. 612, 96 Pac. 162.) His obligations to make the payments and give the security were independent covenants.

Harlan D. Heist, for Respondent.

"The general rule that a vendor of land in order to enforce any rights under the contract of sale must himself be in a situation to give such title as he has undertaken to give, is undisputedly established and has been frequently applied in cases where the vendor sought to enforce forfeiture as against the vendee." (Warvelle, Vendors, 2d ed., sec. 813.)

"The vendor cannot rescind when he is not in a position to perform his own undertaking." (Converse v. Blumrich, 14 Mich. 109, 90 Am. Dec. 230; Wallace v. McLaughlin, 57 Ill. 53.)

"The fact that time is of the essence of the contract will not enlarge the right of a vendor who is not in a condition to convey, to declare a forfeiture for the vendee's default in payment." (Baker v. Bishop Hill Colony, 45 Ill. 264; Frink v. Thomas, 20 Or. 265, 25 Pac. 717, 12 L. R. A. 239.)

1

Opinion of the Court-Budge, J.

"The question of whether or not it need be the first or last, or any intermediate payment on a contract of this nature is treated as immaterial." (Sievers v. Brown, 34 Or. 454, 56 Pac. 171, 45 L. R. A. 642.)

In matters of conditions precedent, even to take the extreme view of it, it would not have been necessary for the respondent to have executed these papers. The fact that the appellant had already refused to accept them if executed, of which respondent had due notice, would be sufficient. (Remy v. Olds, 88 Cal. 542, 26 Pac. 355; Koyer v. Willmon, 150 Cal. 785, 90 Pac. 135; Lowe v. Yolo County Consol. Water Co., 8 Cal. App. 167, 96 Pac. 379.)

"A forfeiture is a harsh remedy and will not be allowed except upon clear proof of a breach of the terms of the contract upon which such forfeiture is to be declared." (Harris v. Reed, 21 Ida. 365, 121 Pac. 780; King v. Seebeck, 20 Ida. 223, 118 Pac. 292.)

BUDGE, J.-By stipulation of counsel two actions brought by appellant against the respondent in the district court of the fourth judicial district in and for Lincoln county, are presented in one transcript and were argued and submitted together. The two cases are the result of an agreement to sell certain real and personal property made by appellant, who is the widow of Peter Wolter, deceased.

The agreement to sell, on the part of appellant, and to buy, on the part of respondent, was signed on September 11, 1913, and recites a cash payment of $100, made at the time, and that the further sum of $5,900 should be paid according to the schedule in the agreement, by which it appears that there was to be $400 paid on November 1, 1913, and $500 paid on January 1, 1914, then beginning with January 1, 1919, there was to be a payment of $1,000 each year until the whole amount of the purchase price agreed upon had been fully paid, these $1,000 payments to be evidenced by five promissory notes to be executed by respondent. Interest at the rate of six per cent per annum was to be paid by respondent on all deferred payments. The payment of $500 due January 1, 1914, was

Opinion of the Court-Budge, J.

designated as the first deferred payment. This agreement does not purport to include the personal property involved in the second suit, but the record discloses that it was understood by the parties at the time the agreement was made that all personal property on the farm, comprising the horses, cows, hogs, farming implements and crops raised thereon that year, of the value of approximately $3,050, was to be included, with no consideration to be paid therefor, other than that to be paid for the real estate.

After the agreement for the sale was actually signed, and with the knowledge and consent of the parties, a marginal notation was made upon the written document which, as appears from the evidence, the parties agreed meant that respondent was to execute a chattel mortgage on the personal property in favor of appellant, to stand for one year for the purpose of securing appellant for the payment of the first deferred payment to herself, and the next payment of principal and interest to the Idaho Irrigation Company, upon a certain water contract, to be due April 1, 1914. It was understood and agreed, also, that appellant should execute a bill of sale covering the personal property and deposit the same with the agreement to sell the real estate in the First State Bank of Richfield, and that these two instruments should not be delivered to respondent until he had complied with his agreement regarding the execution of the chattel mortgage, etc. The agreement also provided for the payment of the taxes for the year 1913 by respondent.

After the foregoing papers (except the chattel mortgage and the five promissory notes) had been executed, some sort of an understanding was evidently reached between appellant and respondent, to the effect that appellant was to remain on the premises until respondent had returned from Washington with his family and effects, after which he was to occupy the farm and appellant was to remove to Hailey. The respondent arrived about the time specified and made the payment of $400, due November 1, 1913, and took actual possession of the premises involved in the action, but did not then execute the chattel mortgage nor the five promissory notes.