Deacon v. Blodget

Britt, C.—Plaintiff recovered judgment for the sum of eight hundred and thirty-five dollars and legal inter [418] est thereon from November 23,1893, found by the court to be due to him from defendant upon the following written instrument: “ I hereby promise to pay George H. Deacon, not later than one year after date, the sum of eight hundred and thirty-five dollars; said sum to be sooner paid if realized from the sale of the southwest quarter of the southeast quarter of section six, township thirty-one S., range twenty-nine east, which said tract of land I hereby place in the hands of said Deacon exclusively for the said term of one year, for sale at a minimum price of forty-five dollars per acre. Said Deacon to receive a commission on said sale of five per cent. Said Deacon to use diligent effort to obtain the best price possible in excess of said price of forty-five dollars per acre. Nov. 23, 1892. H. A. Blodget.” The complaint—filed March 21,1894—set out a copy of said instrument, and alleged its execution by defendant, and that no part of said sum of eight hundred and thirty-five dollars has been paid, but contained no averment that plaintiff had sold or endeavored to sell the land therein described. Defendant contends that the pleading was insufficient; that the contract imposed on plaintiff the obligation to use diligent effort to sell the land before the expiration of one year at forty-five dollars per acre or more, and that he should have alleged such effort in the complaint. This is so if such endeavor on the part of plaintiff is a condition precedent to the duty of defendant to pay said sum of eight hundred and thirty-five dollars, but we think it clearly is not such a condition. Stipulations in a contract are not construed as conditions precedent, unless that construction is made necessary by the terms of the contract. (Front Street etc. R. R. Co. v. Butler, 50 Cal. 577.) The instrument sued on contains two engagements on the part of defendant: one to pay plaintiff the sum of eight hundred and thirty-five dollars not later than one year from date; the other authorizing plaintiff to sell the land described; and the only connection or dependence between [419] them is that the accomplishment of a sale in virtue of the latter would entitle the plaintiff to earlier performance of the former; plaintiff's obligation to use diligence relates entirely to the second contract and not to the first. One or two other points are made, but they are unimportant; we find no error in the record available to appellant. The judgment and order should be affirmed. Vanclief, O., and Searls, 0., concurred. For the reasons given in the foregoing opinion the judgment and order are affirmed. Temple, J., McFarland, J., Henshaw, J.