Kelsey v. Crowther/Opinion of the Court
Upon the facts contained in the previous statement, there is no room to doubt that the judgment of the trial court dismissing the complaint, and the judgment of the supreme court of the territory of Utah affirming that judgment, were correct, unless there was material error in the action of the district court in failing to find whether the appellee Crowther tendered the abstract of title called for in the contract.

The appellants contend that the question of the tender of the abstract was in issue, and was material; that, under the system of pleading prevailing in the courts of the territory of Utah, full findings are required upon every material issue; and that, if any material issue is left unfound, it is ground for reversal of the judgment

But, even if it be conceded that Crowther did not tender the abstract, the finding of that fact would not have rendered a different judgment necessary and hence the supposed fact was really immaterial.

The action was in the nature of a bill for specific performance of a contract for the sale and purchase of a tract of land. If the contract is construed as making it the duty of Crowther to tender the abstract, yet his failure to do so did not dispense with performance or the offer to perform on the part of the complainants. His failure to furnish the abstract might have justified the complainants in declaring themselves off from the contract, and might have formed a successful defense to an action for damages brought by Crowther. But if they wished to specifically enforce the contract, it was necessary for the complainants themselves to tender performance. To entitle themselves to a decree for a specific performance of a contract to sell land, it has always been held necessary that the purchasers should tender the purchase money. This is the rule in the ordinary case of a mutual contract for the sale and purchase of land. And the rule is still more stringently applied in the case of an optional sale, like the present one, where time is of the essence of the contract, and where Crowther could not have enforced specific performance. In such a case, if the vendee wish to compel the other to fulfill the contract, he must make his part of the agreement precedent, and cannot proceed against the other without actual performance of the agreement on his part, or a tender and refusal. Bank v. Hagner, 1 Pet. 464; Marble Co. v. Ripley, 10 Wall. 359.

The second and third findings were expressly to the effect that at no time during the 30 days specified in the contract did the plaintiffs tender or offer to pay the defendants the purchase money, nor signify their intention to accept the terms of the contract, and that said plaintiffs were not ready or willing to pay the balance of the purchase money. Those were the findings of the trial court, and the supreme court reached the same conclusions upon a review of the testimony, which was all in the record; and its conclusions upon this, as a question of fact, are not reviewable by this court. Hawes v. Mining Co., 160 U.S. 303, 16 Sup. Ct. 282.

The bill and answer disclose an issue as to the claim of Lynch and Glasmann that they were bona fide purchasers for value, without notice, of the tract of land specified in the contract between the plaintiffs and Crowther; and as the answers were fully responsive to the allegations of the complaint, and as no evidence was adduced by the plaintiffs to sustain the bill in that particular, there would seem to be no reason why the complaint should not have been dismissed on that issue. As, however, neither the trial court nor the supreme court adverted to that phase of the case, and as there may have been reasons not disclosed to us by the record why that ground of defense was not put forward, we shall not consider it.

The supreme court of the territory also expressed the opinion that, upon the facts disclosed by the record, the complainants had a full and complete remedy at law for all the damages they may have suffered by reason of any and all breaches of the contract, if any were committed, by the defendant Crowther. No errors, however, have been assigned to this ruling.

We think the appellants have failed to sustain their specifications of error, and the decree of the supreme court of the territory is accordingly affirmed. 

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