"

veyed his land. It is stated in the complaint that appellant was a laboring man, of foreign birth, with very limited business knowledge and education. The truth of this allegation is established by the transaction, and the acceptance of the contract with only a penalty of $500. It is alleged in the complaint that the property conveyed was worth $7,000. Upon the trial, officers of appellee, and witnesses in its behalf, fixed the value, variously, from $6,000 to $10,000. In regard to the conversations and inducements held out to appellant by officers of appellee in order to secure the property, there is some slight conflict of testimony, but, in all important particulars, witnesses substantially agree. Appellant was informed by Mr. Sprague, an officer of appellee, that streets were to be laid out and graded; waterworks put in; an hotel, to cost $75,000, to be built upon the laud. Appellant still hesitating, Sprague asks him to see Mr. Dow, the president, and said, "that whatever Dow Said I could depend upon; that he had the money to make the improvements, etc. Mr. Dow was seen, and so far corroborated Sprague as to induce him to make the arrangement. It at once becomes apparent that the inducement for the conveyance of nine-tenths of the property was the agreement to expend a large sum of money then on hand in the improvement of the property conveyed; and the consideration, the enhanced value of the other one-tenth by reason of such expenditure of money in improvements. Such is the unavoidable conclusion from all the testimony in the case, the circumstances and condition of the parties. It is evident that appellant relied upon the honor, ability, and integrity of the officers with whom be dealt, and their assurance of funds on hand to make the contemplated improvements, and intention to do it; otherwise, he would have no consideration whatever, except the $100 received. Appellee failed to realize upon the enterprise, the "boom" col lapsed, and, no matter how honorable its intentions were, was unable to comply with the contract entered into, upon technical interpretation of which it now attempts to escape, and make appellan* the victim.

It is alleged that it had expended $600 or $700 in surveying and platting a portion of the property into lots. At that point it stopped, and required appellant to proceed to a division of the lots surveyed. The parties met, and the following is the uncontradicted testimony of appellant in regard to what occurred at the interview: "Saw Dow next evening. He wanted to know why I had not di vided the lots. I told him that they had not fulfilled their contract. He said they had not agreed to make the improvements before division. I told him I had not agreed to divide the lots until improvements were made. He said they were going ahead to sell the lots; they had a deed to the property, and were not going to make any more improvements, and all I could collect was the $500; that they were under no obligation to grade

the streets then.'" And this is corroborated by the defense interposed. In the answer it is said: "Defendant stands ready to, and will, grade said streets, when needed." The defense is not such as to appeal to a chancellor,-a falling back and reliance upon the contract, as far as appellant is concerned, while evading and avoiding its express stipulations, and the evident intention and understanding of the parties. When the stipulations of a contract are relied upon, the party insisting must show full, complete, and techni cal compliance with all important requirements. The obligations assumed by the appellee in the contract are as follows: "Now, therefore, if said company shall survey, grade, and improve the streets on said lands, make other valuable improvements thereon, and commence, within thirty days of the date hereof, to survey into lots, and plat, said lands, or so much thereof as said company may deem practicable, and deed to said Boyes one-tenth of said lots so platted, to be divided as follows, to wit.' It first covenants to survey, grade, and improve the streets; second, “make other valuable improvements thereon:" then follows in regard to surveying and platting of lots, and their division between the parties. It being conceded, or apparent, that the enhanced value of the onetenth by reason of the contemplated improvements, and the expenditure of money upon the property, was the sole consideration for the conveyance of the nine-tenths, the failure to perform worked an absolute failure of consideration. The agreements on the part of the appellee must be regarded as conditions precedent to its right to enforce the contract against appellant. The setting of stakes, and a plat upon paper, left the land in its natural state, as far 25 marketable value was concerned. The entire tract. as owned by appellant before the conveyance, was in the sume situation it was when he was required to take one-tenth in consideration. The avowal of the appellee of a willingness and intention to lay out and grade streets when they should be needed is of no value. It was 10 precede. It is an attempted evasion.an attempted reversal of the natural order. The laying out and grading of streets was necessary to the habitation of the lots. Occupants could not be expected to enter upon the land, and compel the opening of streets. The other valuable improvements covenanted to be made had not been made of entered upon, not had any survey or plat of the lots been made as agreed. The contract was to survey and plat the lands conveyed. testimony shows appellee to have owned lands adjoining the land in question on two sides, and that in the survey the lots crossed the lines, a fractional part of the lot being on each tract. This was clearly a violation of the contract, rendering the division provided for impossible. Appellant was not required to divide lots, or take compensation from lands other than that conveyed by him. Appellee, by its answer, sets up the contract, and insists upon specific performance on the part of

The

appellant. The acts to be performed by appellee being conditions precedent, and not having been performed, it is not legally in a position to enforce the contract against the other party. "When a contract rests upon a condition precedent, until the performance of the condition, it cannot be enforced, because until that time there is no true contract.

The fact that a contract depends upon a condition precedent which has not been performed is always a complete defense to a suit for its specific enforcement." Pom. Spec. Perf. § 334; Canal Co. v. Ware, 23 Beav. 586; Laning v. Cole, 4 N. J. Eq. 229; Dilly v. Barnard, & Gill & J. 170; Jones v. Roberts, 6 Call, 187.

Appellee having failed to comply with its covenants and agreements, and relying upon the penalty of $500 and the letter of the contract, as against appellant, he was justified in regarding the contract at an end. No court of equity could or would compel him to take one-tenth of the property he conveyed, in the same condition as when he conveyed, as a consideration for the whole. The rescission or cancellation of contracts or deeds, and specific performance, are not matters of absolute right, but are matters of sound discretion, in a court of equity, to be granted or refused according to its own ideas of what is reasonable and right. 1 Story, Eq. Jur. §§ 206, 692, 693: Mortlock v. Buller, 10 Ves. 293. In Torrance v. Bolton, L. R. 8 Ch. App. 118, it is laid down "that there is no general rule that actual fraud is necessary. Even in sales of land, if the contract or enforcement of it is, in the opinion of the court, unconscientious, equity will rescind it." Graham v. Johnson, L. R. 8 Eq. 36; Jones v. Bolles, 9 Wall. 364; Glastenbury v. McDonald, 44 Vt. 450; Wilson v. Getty, 57 Pa. St. 266; Martin v. Graves, 5 Allen, 601. The court will take jurisdiction, and decree deeds, leases, or contracts to be canceled "when enforcing instruments or agreements would be inequitable or unjust. Baker v. Monk, 4 De Gex, J. & S. 388; Wright v. Vanderplank, 8 De Gex, M. & G. 133; Hyer v. Little, 20 N. J. Eq. 443; Allore v. Jewell, 94 U. S. 506; Reid v. Burns, 13 Ohio St. 49. But in this case it is unnecessary to rely upon the equitable power and jurisdiction of the court to cancel and set aside the contract as in. equitable and unjust. A failure to perform on the part of appellee was so far a repudiation of the contract as to warrant appellant in regarding it as rescinded, and he had his election either to sue at law for the breach for damages,-treating the conveyance as valid,-or, as in this case, to bring suit to cancel the conveyance and recover his land. In 2 Pars. Cont. 679, it is stated: "Generally, where one fails to perform his part of the contract, or disables himself from performing it, the other party may treat the contract as re scinded." See Keys v. Harwood, 2 C. B. 905; Planche v. Colburn, 8 Bing. 14; Shaw v. Turnpike Co., 2 Pen. & W. 454; Goodrich v. Lafflin, 1 Pick. 57; Hill v. Green, 4 Pick. 114.

Before entering into the final contract, appellee offered $1,000 for the property,

which was declined. Upon the trial, officers and witnesses of appellee fixed the value of the property at from $6,000 to $10,000, and appellee had paid but $109. To allow appellee, after failure to perform its covenants to give the property value, to retain the property, by falling back upon the $500 penalty, thus keeping the property for $600, would be clearly unjust and inequitable. The district court erred in dismissing the suit, in effect holding appellant to specific performance. The decree will be reversed and cause remanded.

WOOD V. LAKE.

3 Colo.A. 284

(Court of Appeals of Colorado. May 8, 1893.) CERTIORARI-REQUISITES OF PETITION.

1. Under Gen. St. 1883, § 1995, a petition in certiorari in the county court to review a judgment of a justice must state that the judgment was not the result of negligence on plaintiff's part; that the judgment, in plaintiff's opinion, is erroneous, specifying the injustice; and that it was not in his power to take an appeal in the ordinary way, setting forth the circumstances.

2. The remedy so provided, being in the chapter regulating justices, is exclusive, and the general provisions of the Code relative to certiorari are not applicable.

Error to Garfield county court. Proceedings in certiorari by Roderick Lake against Seth H. Wood. From a judgment for plaintiff, defendunt brings error. Reversed.

Seth H. Wood, for plaintiff in error. H. P. Bennet, Jr., and Robert A. Bennet, for defendant in error.

BISSELL, P. J. This is one of those extraordinary cases in which the judgment which was originally entered against Lake ought not to stand, and in which the judgment impeaching it, rendered upon proceedings under a writ of certiorari, cannot be sustained. The result looks like an apparent inequity, but under the record justice is not far from being accomplished. Emma Pruitt brought suit against Lake to recover $25 due her for work and labor done. Wood, a justice of the peace in Garfield county, after proper steps taken to that end, issued a writ of attachment in aid of the suit. It was effectuated by process of garnishment served on a corporation which admitted an indebtedness to Lake in a sum beyond the plaintiff's claim. After the action was started, Lake settled the case out of court, did not appear on the return day, and evidently sought to escape responsibility for the costs incurred by the proceedings. The justice sub-equently entered a judgment against him for the accrued costs, and included therein a fee of five dollars for the plaintiff's attorney, which the counsel contended he had earned in the collection of the debt. The judg ment was for $24.10, and when the justice issued an execution on it Lake endeavored to escape liability by attacking the judgment. It would not be useful to recite the various grounds on which it is claimed the judgment is invalid. It need only be

stated that the defendant, Lake, did not appear, and prosecuted no appeal. He subsequently initiated the present proceedings against Seth Wood, the justice, because that magistrate was without jurisdiction to enter it. When the petition was filed in the county court, that tribunal issued a writ of certiorari, brought up the proceedings, adjudged them to be erroneous, taxed the costs against the justice, and entered judgment accordingly.

If the parties had proceeded regularly and in accordance with the statute, the finding would have been good, and the magistrate would have been remediless. The act concerning justices and constables provides that in certain cases and under certain circumstances the judgments which may be entered by a justice of the peace are reviewable under proceedings initiated by this writ. There is no trouble in holding that the justice's act, which gives this remedy, must be exclusive, and that a party is bound to bring himself within the scope and terms of this law respecting it if he seeks otherwise than by appeal to overturn a judgment which the justice may have entered. It is seriously contended in argument that the Code provisions respecting the writ of certiorari are likewise applicable, and if, under either it or the justice's act, the proceedings may be justified, the judgment appealed from must stand. This cannot be the law. In general, the provisions of the Code have no relation to proceedings before a justice, and wherever, as in the present case, the act regulating the jurisdiction of justices of the peace provides the remedies when a litigant's rights are not respected by the magistrate, these remedies must be taken to be exclusive. The chapter concerning certiorari in the Code is therefore entirely napplicable, and the sufficiency of the present proceedings must be tested by the statute as interpreted by our supreme court. The act has been considered by that court on several different occasions. Their conclusions respecting its requirements are uniform, definite, and well settled. Tilton v. Association, 6 Colo. 288; Small v. Bischelberger, 7 Colo. 564, 4 Pac. Rep. 1195. Section 1995 of the General Statutes of 1883 requires the petition to contain, according to the decision last cited, three things, viz.: “First, that the judgment before the justice was not the result of negligence on his part; second, that the judgment, in his opinion, is erroneous and unjust, stating wherein such error and injustice consist; and, third, that it was not in his power to take an appeal in the ordinary way, setting forth the particular circumstances which prevented him from so doing." This very lucid statement of the law by Judge Helm removes all difficulty from the determination of this case. The petition in no respect complied with the statutory requisites thus clearly and abundantly stated. There was no showing whatever that the judgment was not the result of negligence, nor any showing that it was not in the power of Lake, against whom the judgment was entered, to take an appeal, and review the judg. v.33P.no.2-6

ment in the ordinary way. Since a petition lacking these or equivalent statements, and containing nothing to bring the case within the statutory requirements, will not, under those decisions, support an application for the writ and a judgment thereon, the action of the court below cannot be sustained. For the error committed by the court in entering the judgment upon an insufficient petition the case must be reversed and remanded.

3 Colo.A. 281

DITTO et al. v. JACKSON. Court of Appeals of Colorado. May 8, 1893.) MECHANICS' LIENS-PLEADING-DEMURRER.

The complaint of a subcontractor, to enforce a mechanic's lien, which fails to state hat, at the time plaintiff furnished the mateials to the contractor, no payments had been nade by the owner to the contractor, is not ubject to demurrer, when it contains averments implying that the owner is indebted to the contractor.

Appeal from district court, San Miguel county.

Action by William Jackson against G. M. Ditto and the Bank of Telluride to enforce a mechanic's lien. From a judgment for plaintiff, defendants appeal. Affirmed. W. H. Gabbert, for appellants. Hogg & Fitzgarrald, for appellee.

BISSELL, P. J. This judgment must be affirmed. It will be affirmed upon a much narrower basis than that outlined by the arguments of respective counsel. It is one of those controversies which are constantly springing from the attempted enlargement by the legislature of the preferential rights which the lien statutes give to contractors, and men who furnish material for the erection of buildings. In May, 1891, Ditto, one of the appellants, was the owner of certain premises in the town of Telluride, San Miguel county, and then entered into a contract with Frank Shewmaker to erect a building on the lot for an agreed sum of $800. In the further statement of his cause of action the plaintiff, Jackson, alleged that Shewmaker commenced the work, finished the building according to the contract, and prior to the 1st day of June completed the work, and in all respects fully complied with his contract. There are further allegations in regard to the lumber furnished by Jackson under a contract with Shewmaker, and the filing of a lien under the statute. It is apparently conceded by the appellants that the complaint is a sufficient statement of the cause of action, save in one particular, to wit, that the pleade: failed to state directly that no payments had been made by Ditto to the contractor, Shewmaker, prior to the time that Jack. son, the appellee, furnished the materials for which he seeks to recover in this action. The complaint was demurred to on the ground that it did not state facts sufficient to constitute a cause of action, and from the judginent overruling the demurrer the owner of the premises appeals.

The lien law of 1883 was radically amended by the act of 1889, (Sess. Laws 1889, p. 217.) Section 7 of the act substan