formance, and sue for the profits he would have realized if he had not been prevented from performing."

See also McKellar Real Estate & Invest. Co. v. Paxton, 62 Utah, 97, 218 Pac. 128.

The plaintiff in this action accepted the breach of the contract upon the part of defendants and brought this action to recover what she had paid, less the reasonable rental value

Election of remediesbreach of contract by vendor.

of the premises. As was clearly her right, she elected to take as damages the amount paid, less the benefit she received, and that is what the court granted her in the judgment. She did not elect to sue for profits or the value of the property if it exceeded the value of the contract price, but was content to recover back what she paid. That is what the complaint alleges, and that is what she was entitled to recover; hence the complaint states a cause of action. The findings of fact are in effect a restatement of the allegations of the complaint, and as such are sufficient to support the judgment.

Defendants have cited a number of Utah cases which it is contended support the contention that the complaint does not state a cause of action, or that the findings do not support the judgment. Among the cases cited are the following: Rose v. Garn, 56 Utah, 533, 191 Pac. 645; Dopp v. Richards, 43 Utah, 332, 135 Pac. 98; Howorth v. Mills, 62 Utah, 574, 221 Pac. 165; Bullen v. Petersen, 63 Utah, 408, 226 Pac. 464; Cooley v. Call, 61 Utah, 203, 211 Pac. 977; Malmberg v. Baugh, 62 Utah, 331, 218 Pac. 975; Foxley v. Rich, 35 Utah, 162, 99 Pac. 666.

Reliance is had particularly upon the opinion of this court in Foxley v. Rich, supra. The court in that case held that the purchaser of land who was in default and had abandoned the premises, and who had refused to make the payments stipulated after repeated requests, could not recover the money paid. Clearly under the facts recited in that case, no other conclusion ought to

have been reached than that the plaintiff there was not entitled to recover the money paid as a part of the purchase price. He had refused to make the payments, had abandoned the property, and had still refused to pay when requested. It also was made to appear in that case that the seller was able and willing to comply with the provisions of the contract and convey title upon the. payments made as stipulated in the agreement. The facts in that case are so entirely different from the facts in the instant case as to make the principles and rules of law stated wholly inapplicable to the facts here. The other cases cited do not discuss the particular question involved on this appeal.

Some stress is laid in the brief of defendants that the allegation of the complaint that tender was made on June 1, 1923, is not an allegation of fact but merely a conclusion of law. It is likewise contended that the court's findings merely followed the allegations of the complaint and are mere conclusions and not findings of fact. Defendants, in support of this contention, among other cases, cite the following: Proebstel v. Trout, 60 Or. 145, 118 Pac. 551; Goss v. Bowen, 104 Ind. 207, 2 N. E. 704; Dickerson v. Hayes, 26 Minn. 100, 1 N. W. 834. The court in the instant case not only found that tender was made of the balance remaining unpaid on said agreement of purchase, but likewise found that plaintiff offered to fully perform her part of the contract and was able to perform the contract, and that defendants refused said offer and said payment and refused to execute the agreement on their part. Whether the allegations of the complaint as framed are allegations of fact or mere conclusions is, as we view this record, wholly immaterial. The defendants had no legal right to terminate the contract and repossess the property without first making a formal demand on the plaintiff, and that they did not do, but saw fit, apparently, to put their own construction upon their rights under the

No general rule can be laid down on the present question, as the decision in each case depends on the particular contract provisions involved. Indeed, little authority on the subject has been found; and, because of this dearth of direct authority, several cases are set out which have a bearing on the question, but are not directly within the above title.

As to right of purchaser under land contract to anticipate time of payment fixed by contract, see annotation in 17 A.L.R. 866 [Vendor and Purchaser, § 5]. The rule, it appears from this annotation, is that, in contracts for the sale of land, the vendee does not have a right to anticipate payment, and that a premature offer of performance by him is ineffective. And that the rule is applicable in cases where payments are to be made in instalments, see, for example, Graeme v. Adams (1873) 23 Gratt. (Va.) 225, 14 Am. Rep. 130, which is set out in the annotation in 17 A.L.R. on p. 871, where a building contract provided for payment in instalments bearing interest, and it was held that the same could not be discharged by a tender of cash at the time the building was completed. And to the effect that where a debt is payable in instalments, at fixed dates, the several instalments cannot be paid before the time they are due, unless the payee consents to receive prior payment, is Ebersole v. Redding (1864) 22 Ind. 232.

The holding in the reported case 48 A.L.R.-18.

(MCBRIDE V. STEWART, ante, 267), that the payment in one month of more than was required did not relieve the purchaser of his duty under the contract to pay the stipulated sum in succeeding months, seems sound, in view of the fact that the agreement was to pay $30 "or more" on or before a specified day of each month. In the absence of the words quoted, the contention would seem plausible that the vendor could not terminate the contract if the average payments made complied with those stipulated in the contract. And there is authority in favor of this view.

Thus, in Los Angeles Invest. Co. v. Wilson (1919) 181 Cal. 616, 185 Pac. 853, it was held in an action by a landowner against a lessee with option to purchase, brought for the purpose of terminating the contract, that the latter was not in default at the time of the bringing of the action, since the total amount paid by him exceeded the total of the required monthly payments from the date of the agreement to the beginning of the action, in view of the fact that there had been a payment in the first month of the agreement of $300, and various other sums of $36 or double that amount, paid at irregular times, although in months, including several months immediately prior to the beginning of the action, no payments had been made. In that case, a contract of lease with privilege of purchase was for a term of 120 months, and provided for a

rental of $36 payable in advance on or before the first day of each month; it was agreed that the lessee should have the right to purchase the property for a certain sum, plus taxes, insurance, and assessments, and interest at 7 per cent per annum, and it was also agreed that, on default of payment of rents, the landlord might reenter and the rights of the lessee should thereupon cease and the agreement terminate; the contract further provided that any amounts paid as rent should apply, first, to the payment of interest due, then to payment of taxes, insurance, and assessments, and that the balance should be applied to the payment of the principal. The court said: "Appellants insist that Mrs. Wilson was not in default at the time of the commencement of the action. This is true if the contract did not require the payment of at least $36 every month beyond any sums that might have been credited on the purchase price, because the sum of $300, made up of two payments during the first month of the life of the agreement (March, 1913), if added to the amounts paid at irregular intervals averaging $36 a month up to January 1, 1916, would bring the average up to $36 a month for a much longer period. In other words, Mrs. Wilson's counsel contend that (1) the agreement, while termed a 'lease with privilege of purchase,' was really a conditional sale of the property for $3,550, payable in instalments of $36 or more monthly; (2) that the vendee was not in default so long as her credit, if applied to the debt, showed an average of more than $36 for each month that the agreement had been in existence, and (3) since her credit at the date of the institution of the suit was sufficient to show an average of more than $36 a month, the suit was premature, as no breach of the contract had been made at that time. . . . We see no escape from this conclusion. The agreerent did not require the payment of any sum greater than $36 a month for 120 months. Payment of a greater sum was optional with Mrs. Wilson. If she chose to pay more than $36 at any

one time (as she did) such payment must be considered as having been made ‘on or before' any date on which she failed to make payment of $36. The finding that Mrs. Wilson was in default at the commencement of this action was, therefore, without support. The action was prematurely commenced."

And in Southern Invest. Co. v. Galloway (1921) 206 Ala. 445, 90 So. 300, it was held that a court of equity should enforce the contract and refuse to permit a forfeiture for nonpayment of taxes, where the overpayment on the monthly instalments equaled approximately the amount of taxes unpaid, and the purchaser would, by permitting a forfeiture, lose the cash payments already made and substantial sums paid for improvements. In this case a contract of sale of a lot by the defendant to the complainant for the sum of $825 provided for a cash payment of $25, and the payment of $10 per month until the total amount was paid, the purchaser agreeing to pay taxes, assessments, and interest; time was made of the essence of the contract, which provided for forfeiture of the entire amount paid in the event of failure of performance of any part of the contract; payments were made from time to time for about two years, the total monthly payments being sufficient to pay for two months in advance of the time of the commencement of the suit. The unpaid taxes amounted only to about $20, and in view of the complainant's willingness and ability to perform the contract on her part, and the hardship which would result from a forfeiture, the court held, as above indicated, that the vendor should not be permitted to declare the contract forfeited. Generally as to relief against forfeiture of land contract, see annotation in 40 A.L.R. 182 [Forfeiture, § 3]; and as to forfeiture of lease, see annotations in 16 A.L.R. 437, and 24 A.L.R. 724 [Landlord and Tenant, § 87].

Although not on facts within the scope of the annotation, the decision in Donk Bros. Coal & Coke Co. v. Freeburg Min. Co. (1899) 81 Ill. App. 88, may be of interest, as illustrative of

possibly other cases of the kind. The action was by a mining company against a coal company which had agreed to purchase of the mining company at least 3 carloads of coal on every working day, at a certain price per ton, during a specified period. It was held that this contract bound the coal company to take and pay for not less than 3 carloads on each working day, and that the taking by the company of no coal on some days and enough on others to bring up the average to 3 cars a day would not meet the requirements of the contract. It may be observed that a contract of this character involves some considerations as affecting the present questions, not applicable to a contract for the payment of money in instalments.

But in Griffin v. Ferris (1903) 76 Conn. 221, 56 Atl. 494 (a case not directly in point, since it did not involve the application of the excess payment for one period upon amounts due for subsequent periods), where a contract of sale of goods for a certain sum stipulated that such sum was "to be paid weekly, account to be settled in full in twelve months," the court held that the obligation assumed by the purchaser was twofold, to pay something every week until all was paid, and to pay the entire sum within twelve months, and that any default in either respect gave the sellers an immediate right to resume possession. The contract provided that the title and ownership should remain in the sellers until the entire price was paid, and that, in case any partial payment was not made when due, the sellers might take possession and retain payments made for use of or damage to the goods. It was accordingly held, in an action of replevin brought by the purchaser, that an instruction was erroneous that the words "account to be settled in full in twelve months" gave the plaintiff an absolute right to possession for twelve months from the time of the contract, since this charge virtually denied any effect to the preceding words regarding weekly payments.

The question under annotation is to be distinguished from that in the two

cases next cited, as to whether an original cash payment or allowance is to be applied in satisfaction of the stipulated periodical payments.

Thus, in Sonnenberg v. Daley (1912) 86 Conn. 1, 84 Atl. 93, where a contract for the sale of a piano provided for an allowance of $300 on account of other pianos, and then declared that the seller had delivered to the purchaser a certain piano, which the purchaser had received on terms and conditions following, to wit: Payment by the purchaser of $30 at the time of signing the contract, and $30 on the 15th day of each and every successive month, until the whole sum of $1,200 was paid, it was held that the contract should not be construed as meaning that the allowance of $300 first stipulated should be used to take the place of the first ten payments subsequently referred to in the contract, -in other words, that the parties did not intend that no monthly payments should be made until the lapse of ten months from the time of the execution of the contract, but that the contract should be construed as requiring the payment of the stipulated sum each month from the time the contract was executed.

Where a sign company agreed to install and maintain an electric sign on premises of the defendant, the contract providing that the latter should pay the sum of $56 "as deposit and $6.26 each week in advance for the remaining term of this contract as rental for the use of said sign and lighting thereof," it was held in Federal Sign System v. Palmer (1919) 176 N. Y. Supp. 565, that the $56 should not be construed as a payment on account for the first weeks of the term, under which construction the defendant would not have been in default for nonpayment of the weekly amounts, but that this was a sum deposited by way of security for the defendant's performance of the agreement, and that the contract required the defendant to pay the stipulated sum each week.

Attention is called to Shull v. Lawrence (1919) 32 Idaho, 527, 186 Pac.

247, in which it was agreed between the owner of land and the holder of an option to purchase the same, for a sum to be paid in instalments, that the owner might place a mortgage on the property, and that, in case the holder of the option exercised the same, the owner should consider the assumption of the mortgage debt by the purchaser as part payment on the purchase price as provided in the option; and it was held that, as the agreement did not state what part or instalment of the purchase price the assumption of the mortgage indebtedness was to become, the debtor might direct application of the payment, and require that it be applied on the first instalment required to be paid by the option contract.

And it was held in Lillis v. Stein

bach (1909) 51 Wash. 402, 99 Pac. 22, that in the payment of the instalments time was not of the essence of the contract of sale of vacant lots for the sum of $250, of which $14 was cash, the balance being "payable $5 and interest at 7 per cent per annum on deferred payments monthly," where the purchaser was a brick mason and the contract also declared that the parties understood that "the payments as near as can be are to be taken in work when price is as low as lowest other bidder; so that the purchaser, notwithstanding the fact that the contract contemplated monthly payments, had the entire contract period for payment, and the seller, where payments were made at irregular intervals, could not rescind the contract until after the last instalment became due. R. E. H.

construction

in

tent of legislature.

--

Statutes, § 287 conferring rights on married women liberal construc

tion.