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it is coupled with a demand for the perform- tion required him to do. He went to the ofance of reciprocal duty enjoined by law upon fice designated, and tendered the sum specthe person to whom the tender is made." 28 ified as his election to complete his option. Am. & Eng. Ency. of Law (2d Ed.) 33. "For That tender was to the very person desigthe purpose of avoiding

the loss nated in the option, at whose office the monof any rights or privileges, the tender is the ey was to be paid. The payment of the monexact equivalent of payment, and it does ey at the place stated was the only condition not have to be repeated. * Tender imposed upon the purchaser.

# The when rejected operates as payment.” Words tender at the place designated, was all that and Phrases, vol. 8, pp. 69, 110.

the option required.” We think that the tenWe are justified in concluding that, if ten- der at the bank was an acceptance of the offer, der had been made to Stratton living, with- that it satisfied the condition necessary to in the life of the contract, its effect as such entitle the appellant to a delivery and assignwould not have been impaired by a demand ment of the securities contracted for, and for a delivery of the notes and an assign- that a mutual contract then arose by appelment of the decree. The tender, although lees to deliver and assign, and by appelaccompanied with such demand, would for

lant to pay. the purpose of saving rights have been the 2. It is next contended that the judgment equivalent of payment. That such would below dismissing the complaint should stand, have been the effect of the tender, if made because the complaint, even though it stated to Stratton living, we do not understand to facts showing a valid contract to assign the be denied; but it is said that the demand, securities, did not state such facts as entitlcoupled with the offer to the bank, defeated ed appellant to specific performance, because its operation as a tender. The contract gave it is said appellant had an adequate remedy to Finnerty, or his assignee, the option of by an action at law for damages. The folmaking payment to and at the bank, and in lowing are the facts pertinent to this questerms provided that, upon payment being so tion, as such facts appear from the complaint: made, the notes would be delivered and the

July, 1902, a decree was entered in said suit decree be assigned. The obligation of Strat- of the United States Mortgage & Trust Comton, according to the terms of the contract, pany against H. C. Brown, finding the was to be the same whether payment was amount due June 20, 1902, on the unpaid made to hiro in person or to and at the bank. notes secured by said mortgage to be $623,The rights of Finnerty were to be the same 332.32, the mortgage to be a first lien on the whether he paid Stratton in person or made real estate covered thereby, and ordering a payment to and at the bank. The rights of sale of said real estate to satisfy said inFinnerty, or his assignee, were dependent up- debtedness and the expenses of foreclosure. on his making payment in one of the modes The aggregate indebtedness to satisfy which prescribed by the contract, and his rights the sale was to be made was $662,000. July were to be the same whichever mode of pay- 16, 1902, Stratton made the contract hereinment he saw fit to adopt. This being true, after set out to sell said securities for $650,if tender of payment to Stratton would en- 000, to be paid on or before 60 days. Strattitle Finnerty to demand contemporaneously ton died before the expiration of the life of therewith a delivery of the notes and an as- the option. After his death, and before the signment of the decree, and if such tender, expiration of the 60 days, the tender, herecoupled with such demand, would operate as inbefore set out, was made, and this suit was a payment for the purpose of an acceptance brought December 5, 1903. Appellant desired of the option and an avoidance of the loss to become a purchaser of the Brown Hotel of any rights thereunder, such tender made property. At the sale ordered to be made to the bank, coupled with such demand, had under the decree it would require about $700,a like effect as if inade to Stratton. Mueller 000 to make the bid. By becoming the ownv. Nortmann, 116 Wis. 409, 93 N. W. 538,1 is er of the notes, mortgage, and decree, apin point. Klein, for a valuable consideration, pellant would have legitimate advantages in gave plaintiff this option: "In case said J. bidding at the sale that others would not F. Mueller elects to purchase said land un- have. By owning the securities the enormous der this option, he is to pay at the office of sum, which he would probably have to bid Theo. Mueller, in Milwaukee, Wis., within at the sale, would draw interest from the four weeks from date thereof, $4,975, when a date of his purchasing the securities to the warranty deed of said land shall be deliver- date of sale, regardless of any postponement ed.

Within the time limited, thereof. The officer making the sale might plaintiff tendered at the office of said Theo. be slow in fixing a date of sale. The sale Mueller the sum mentioned in the option, but when noticed might be postponed. The sale the said Mueller refused to accept the same, when made might be set aside by the court. assigning as his reason therefor the death In the event appellant became the purchaser of Klein. An action was brought to enforce at the sale, he might acquire the property, specific performance. The court held that or there might be a redemption from the sale the action would lie, saying: "Within that within any time before the expiration of nine period [the period named in the contract] the months from the date of sale. How long his plaintif did everything that the written op- money would remain so invested is uncertain.

19C Am. St. Rep. 997.

How long it would require to reinvest so large a sum is uncertain. It is contended upon the part of appellee that specific performance will not lie for the reason, above stated, that appellant had an adequate remedy at law in damages. Appellant contracted for the specific performance covered by the contract. He had legitimate reasons for purchasing these securities, which reasons were, presumably, known to Stratton. An action at law for damages would not give to appellant that which Stratton contracted to sell him by the contract. Appellant could not go upon the open market and with the damages procured at law purchase other securities which would answer the same purpose for which he legitimately desired to purchase these specific securities. If he had brought an action at law for damages immediately upon a breach of the contract to sell him the securities, the amount of his damages would have been a matter of conjecture. It would have been impossible to say how long his funds would have been invested in these particular securities; perhaps some one else would have bid in the property at the date of the sale. If appellant had purchased, it would be uncertain as to whether or not there would be a redemption there from, and, if so, when. · When an action at law for damages will not answer the justice of the case, and an action for specific performance will do so, the action for specific performance will lie. The general principle has thus been announced in the courts of this state: “That courts of equity have jurisdiction to decree the specific performance of agreements, whether relating to personal or real property, is well settled. 4

The ground of the jurisdiction, when assumed, is that the party seeking equitable relief cannot be fully compensated by an award of damages at law.” Frue et al. v. Houghton et al., 6 Colo. 318, 319. "The old rule, that the remedy must pertain to an interest in realty, has been relaxed, and modern decisions decree the performance where the subject-matter is purely personal.” Colo., L. & W. Co. v. Adanis, 5 Colo. App. 193, 37 Pac. 39. The following cases furnish illustrations of the application of the doctrine that specific performance will lie upon contracts pertaining to personalty when there is an adequate remedy at law in damages: Buxton v. Lister, 3 Atkins, 382, was specific performance by the vendor upon an agreement by defendants to purchase several timber trees marked and growing at the time. While the court dismissed the bill on an affirmative defense, it was held that specific performance would not lie upon such a contract. Wright v. Bell, 5 Price (Exchequer Reports) 325, was a bill against the purchaser to compel the specific performance of a contract for the purchase of a debt. Held, the action would lie. Adderly v. Dixon, 1 & 2 Sim. & Stu. 607, was specific performance at the suit of the ven

dor upon a contract for the sale of debts proved under a commission of bankruptcy. It was held the action would lie. In the course of the opinion the court said: "Courts of equity decree the specific performance of contracts, not upon any distinction between realty and personalty, but because damages at law may not in the particular case afford a complete remedy. Thus, a court of equity decrees performance of a contract for land, not because of the real nature of the land, but because damages at law, which must be calculated upon the general money value of the land, may not be a complete remedy to the purchaser, to whom the land may have a peculiar and special value. So a court of equity will not generally decree performance of a contract for the sale of stock or goods, not because of their personal nature, but because damages at law, calculated upon the market price of the stock or goods, are as complete a remedy to the purchaser as the delivery of the stock or goods contracted for, inasmuch as with the damages he may purchase the same quality of the like stock or goods." Furman v. Clark, 11 N. J. Eq. 306, was an action of specific performance upon a contract by which the defendant agreed to furnish the complainant with clay on board his boats at a certain price; the clay to be delivered from time to time wbile navigation was open, and the delivery to run through a period of seven years. Defendant delivered the clay according to contract during the first year, during the second year he failed to make delivery according to the contract, and declined to make fur. ther deliveries. While the bill was dismissed for lack of proof of the facts, it was held that specific performance would not lie upon such a contract because the damages sustained could not be measured in an action at law. In Cutting v. Dana, 25 N. J. Eq. 263, specific performance was sustained upon an agreement made by the defendant with the complainant by which the former agreed to assign to the latter a certain debt. In Brown v. Runals, 14 Wis. 693, an action of specific performance was sustained to compel the defendant to deliver to the plaintiff certain notes and a mortgage securing the same, which de fendant had agreed to restore plaintiff upon the payment of a debt, to secure which the notes and mortgage had been hypothecated to the defendant by plaintiff. The debt had been paid. The court upheld specific performance, and, while the special ground of the decision is the trust relation created by the contract, yet the court considered that the facts, aside from the trust feature, justified specific performance. In Shockley v. Davis, 17 Ga. 177, 63 Am. Dec. 233, the court upheld an action for specific performance upon an agreement of Shockley to turn over to the plaintiffs certain evidences of debt to secure them from loss by reason of their suretyship for the defendant. Gottschalk v. Stein, 69 Md. 51, 13 Atl. 625, was an action of specific performance upon a contract of the defendant,

Gottschalk, to transfer to the plaintiff certain family had occupied for about 20 years. It promissory notes. The action was upheld. seems that the first slaughter house, which The court, inter alia, said: "Now, in this , ,

had been erected some 8 or 10 years prior to case the appellant agreed to sell to the appel- the commencement of this suit, was destroylee three promissory notes of Weiler & Son, ed by fire, and that plaintiff had objected to and appellee agreed to buy these notes for a the rebuilding of the house, and had objected specific purpose, which was known to the an- to and complained of the injury and inconpellant. Ar action at law for a breach of the venience to her on account of the odors froni contract would not, it is clear, give to the ap- the slaughter house and its use and the noise pellee the subject-matter of the contract; resulting from the keeping of cattle in pens and, besides, the damages to be recovered adjacent to the slaughter house. The answer must necessarily be uncertain."

in effect is a denial of the allegations of the The principle of law announced by the fore. complaint, and defendants also plead the going authcrities, and by others not cited. is statute of limitations. that if, under the facts of the particular case The main contention of appellants as set before the court, there is not an adequate forth in their brief is that there is not sufremedy in an action at law, specific perform- ficient evidence to support the allegations of ance will lie; whether the action can be the complaint, that there is not sufficient evimaintained depends upon the facts of each dence to support the judgment, and that the particular case. In the case before us, an ac- judgment is based upon "a remote sentiment tion at law will not satisfy the justice of the of future possible annoyance, not warranted case, because it will not give to appellant the by the facts." The record does not support specific sectirities which he for good reasons this contention. It is clearly shown by the contracted to purchase of Stratton, and be- abstract, and the additional abstract filed by cause the damages by appellant otherwise appellee, that the plaintiff had suffered much sustained by a breach of the coutract cannot annoyance and inconvenience because of the be estimated in an action at law.

ondors and stenches which had emanated from The former opinion herein will be with

the use of the slaughter house, This is drawn, and a judgment of reversal entereil.

shown, not only by the evidence of her own Judgment rerersed.

family, but strangers to the suit testified posi

tively as to the sickening odors which had GODDARD, J.. not participating. The

reached them from the slaughter house at a CHIEF JUSTICE and BAILEY, J., dissent

point about the same distance therefrom as ing.

plaintiff's dwelling house. Indeed, there was not very much conflicting testimony. IIow

ever, this matter was submitted to a judicial (40 Colo. 437)

determination, and the court found as a fact WRIGHT et al. v. ULRICH.

that the maintenance and operation of the (Supreme Court of Colorado. July 1, 1907.)

slaughter house and its adjuncts by defend1. NUISANCE - PRIVATE NUISANCE - INJU XC

ants "constituted and constitutes a continuTION. The occupant of a dwelling is entitled to an

ing nuisance, resulting in rendering plaintiff's injunction to restrain the operation of a slaugh- occupancy of her dwelling house and premter house adjacent thereto, where such operation ises described in the complaint in this cause causes the dwelling to be filled with noxious disagreeable and uncomfortable by reason of smells. [Ed. Note.-For cases in point, see Cent. Dig.

the noxious vapors and noisome smells and vol. 37, Nuisance, 64.]

stenches emitted therefrom, which are a con2. LIMITATION OF ACTIONS-CONTINUING NUI- stant menace to the health of plaintiff and SANCE.

her family, materially impair the usefulness The nuisance was a continuing one against

of said property, and greatly decrease its which limitations did not commence to run at the inception thereof.

value; that the damage to plaintiff therefrom (Ed. Note.-For cases in point, see Cent. Dig.

are of such a nature and character, of such vol. 33, Linitation of Actions, 88 303, 301.) 'proportions and so peculiar to herself, as to

entitle her to equitable relief herein." Appeal from District Court, Fremont Coun

We think the findings of the court are ty; M. S. Bailey, Judge.

amply sustained by the evidence. We do not Suit by Lucinda Ulrich against Samuel A.

find any error in the law as applied by the Wright and others. From a judgment in

trial court to this case. Without entering favor of plaintiff, defendants appeal. Af.

into an extended discussion of the law contirmed.

cerning nuisances both public and private, the Maupin, McLain & Wilkes, for appellants. City of Denver v. Mullen et al., 7 Colo. 345, 3 Taylor & Sayre, for appellee.

Pac. 093, furnishes ample authority for the

plaintiff to maintain this action. The suit is CASWELL, J. This suit was instituted in manifestly to abate the nuisance, regardless the district court of Fremont county by the of damages, and any private nuisance may be appellee, plaintiff below, to restrain the ap- abated by the party aggrieved. In Wood's pellants from rebuilding and operating a Law of Nuisances, $ 22, it is said: "As to slaughter house adjacent to plaintiff's prem- what constitutes a nuisance is a question for ises and dwelling house which she and her the court and not for the jury to determine.

Appeal from District Court, Weld County; Christian A. Bennett, Judge.

Action by Minnie B. Mayne against the Big Thompson & Platte River Ditch Company. From a judgment for plaintiff, de

. fendant appeals. Reversed and remanded.

Garrigues & Smith, for appellant. H. N. Haynes, for appellee.

Whether the results of a given business are so common as to amount to a public nuisance is a question for the jury." In the case at bar a jury was waived and trial was had to the court, and the court passed upon both these questions adversely to the appellant. It page 692, Am. & Eng. Enc. of Law, it is said: "It may be laid down broadly as a general rule that any act, omission, or use of property which results in polluting the atmosphere with noxious or offensive effluvia, gases, stenches, or vapors, thereby producing material physical discomfort and annoyance to those residing in the vicinity or injury to their health or property, is a nuisance”-and many cases are cited in support of this doctrine. We know of no decisions to the contrary, and none are pointed out to us. At page 697 of the same volume it is stated: "When the noises made by animals kept in a residence neighborhood is of a distressing or annoying character, it is a nuisance."

The case was not barred by the statute of limitations. It is held in the case of Home Supply Ditch Co. v. IIamlin, 6 Colo. App. :311, 40 Pac. 582, that "the continuing of a trespass or nuisance from day to day is considered in law a several trespass on each day"; and it was further held in that case that "the nuisance or trespass was continuous, and the subsequent damage continually being incurred, that the ditch company was liable until the nuisance was abated and the cause of damage removed, and that the law of continuing nuisances and continuing trespasses is, admittedly, the same." It follows that the plaintiff could have sought a decree abating the nuisance at any time during its existence, unless she had estopped herself, hy some act or agreement, to complain of the nuisance. No estoppel was pleaded, proven, or claimed in the case at bar.

Perceiving no error in the record, the judgment is affirmed.

BAILEY, J. Appellant, who was defendant below, is a mutual ditch company, de livering water for irrigation pro rata upon its shares. Appellee, who was plaintiff below, owns one-fifteenth of the shares of the company. Plaintiff brought this action to recover for losses she claimed to have sustained because of the alleged failure of defendant to deliver the water to which she averred she was entitled.

Among other things she alleges in her complaint that defendant failed and neglected to divert any water from the Big Thompson river into its ditch during the irrigation season of 1899 until May 28th, and thereafter failed to deliver to her her pro rata share of.the water in the ditch. The testimony as to there being water in the river available for defendant at certain times and the amount thereof at certain other times was conflicting, and plaintiff in making her case in chief called the water commissioner as a witness, and the court, over the objection of defendant, permitted him to testify as to the contents of a book kept by him in which he made a record of the amount of water said to be flowing in the river, and the amount which defendant consequently was entitled to divert. While the memorandum made in the book was written by the witness, he had no personal knowledge of the truth of the statements. He had two deputies, and one of these reported to him the amount of water in the river above the ditches taking water, and the other reported to him the amount of water in the river at defendant's beadgate, and from these reports he made bis record. The admission of this testimony was error, and as the matter testified to was vitally material to the making of plaintiff's case the error was prejudicial.

Plaintiff contends that the testimony was admissible, because "the memorandum book kept by the water commissioner was a public record kept by an officer in the proper discharge of his official duty.” The statutes do not require the keeping of such a book. They do require that the commissioner report to the state engineer, among other things, the amount of water coming into the district and the ditches which are inadequately supplied. The object of these reports is to enable the state engineer to perform his duty and are for his guidance, and not for the purpose of creating or perpetuating testimony. It is made the duty of the district court to appoint a committee to examine the books of the county treasurer and make and file a written report, yet this re

STEELE, C. J., and MAXWELL, J., concur.

(36 Colo. 355)

DITCH CO. v. MAYNE. (Supreme Court of Colorado, April 2. 1906. Re

hearing Denied May 7, 1906.) EVIDENCE-MEMORANDA-PUBLIC RECORD.

Where the water commissioner has deputies who report to him the amount of water in a river and from these reports he makes a record in a book, he cannot, in an action by a share owner in an irrigation ditch company against it for failure to divert water from a river and deliver it, testify to the contents of the book to show the amount of water in the river, on the theory of the memoranda being a public record ; the statutes not requiring him to keep such a book, though they do require him to report to the state engineer the aniount of water coming into the district and the ditches inadequately supplied, the object being to enable the state engineer to do his duty, and the water commissioner having no personal knowledge of the matters recorded by him.

port is not admissible as evidence, although Error from District Court, Miami County ; the matters stated therein may be material. W. H. Sheldon, Judge. McClure v. La Plata County, 19 Colo. 122, Action by Jane Rouse against J. W. Rouse 34 Pac. 763. While some of the authorities and others. Judgment for defendants, and hold that a record may be introduced in evi- plaintiff brings error. Reversed and re dence, even though the keeping of it may manded. not be required by law, if it is essential

Alpheus Lane, Benson & Harriss, and w. to the conduct of the office, yet the matters

J. Costigan, fór plaintiff in error. Frank M. recorded must be within the knowledge of

Sheridan, for defendants in error.
the officer at the time he records them. 1 1
Greenleaf on Evidence, & 493.
The memorandum book kept by the water

PORTER, J. This suit was for partition commissioner was not admissible to prove of lands, and the construction of an anteany of the issues in this cause. We do not nuptial contract is the only question involvdeem It necessary to consider the other er- ed. George W. Rouse died intestate in rors assigned, and the judgment will be re

Miami county August 9, 1903, at the age of versed and remanded.

82 years. He owned about 200 acres of land Reversed.

at his death, and left surviving him, in ad

dition to several children of a former marGABBERT, C. J., and GODDARD, J., con

riage, his widow, Jane Rouse, and one child cur.

by her. The controversy is between the children of the first marriage and Jane Rouse,

the widow. He married Jane Rouse in 1874. (76 Kan. 134 KREMER V. KREMER.

Immediately before the marriage they en

tered into the following contract: (Supreme Court of Kansas. July 5, 1907.) Modification of judgment. Case remanded

“Know all men that we, G. W. Rouse, of to lower court, with instructions.

Miami county, state of Kansas, and Jane For former opinion, see 90 Pac. 998.

Sewel, of the same place, in consideration

of mutual promises of marriage between PER CURIAM. Since the order awarding made, have this day agreed and we do by the land to tbe defendant was reversed in

these presents agree, that in case said marthis case, the parties have agreed that, as

riage takes place, that the property real and the record discloses all the facts in the case,

personal now owned by either, or which may this court may accept them as agreed to and

hereafter be acquired by either, shall after direct the judgment to be rendered. The

the solemnization of said marriage, be and case is therefore remanded, with instructions

remain the separate and distinct property of to award the land in question to the plaintiff

such owner, and neither shall have or exeras her separate property, and to set aside the

cise any rights, title or estate in the property judgment in favor of the plaintiff against

of the other, and each may at his or her op• the defendant for $1,250, which was made a

tion, dispose of by will or otherwise, all or lien on the land, and that in all other re

any part of his or her property in such manspects the judgment be the same as before.

ner as may to him or her seem fit, excepting, however, that said G. W. Rouse shall not dur

ing the lifetime of said Jane Sewel so dispose (76 Kan. 311)

of his property as to jeopardize or render ROUSE v. ROUSE et al.

nugatory the provisions hereinafter mention(Supreme Court of Kansas. July ő, 1907.)

ed, viz.: It is agreed and provided that said DESCENT AND DISTRIBUTION-RIGHTS OF SUB

G. W. Rouse shall and will furnish to said VIVING WIFE-ANTENUPTIAL AGREEMENT- Jane Sewel a good, proper and comfortable CONSTRUCTION.

support out of his said estate, so long as they An antenuptial agreement provided that the property owned by either party should, after

shall live together as man and wife, and the marriage, remain the separate and distinct also, that in case said Jane Sewel shall surproperty of such owner, and neither should vive said G. W. Rouse then and in that case have or exercise any right, title, or estate in the said Jane Sewel shall have a proper and property of the other, and each might at his or her option dispose of such property by will or

sufficient support according to her station in otherwise except that the husband should not,

life out of the estate of the said G. W. Rouse during the lifetime of the wife, so dispose of his during the term of her natural life, or so property as to jeopardize or render nugatory a

long as she remains the widow of said G. W. subsequent provision for her benefit, by which he agreed to furnish her proper and comfortable

Rouse. support so long as they lived together as hus- "Witness our hands and seals this 23d day band and wife, or, in case she survived him, so of June, A. D. 1874. long as she remained his widow. After living

"G. W. Rouse. (Seal.] together 30 years the husband died intestate. Held, that the agreement did not exclude the

"Jane Sewel. [Seal.]" widow from her right of inheritance in the husband's property.

The district court held that by the terms (Ed. Note. -For cases in point, see Cent. Dig. of the agreement Jane Rouse took no interyol. 16, Descent and Distribution, $ 150.]

est in any of the real estate. Of this hold(Syllabus by the Court.)

ing Mrs. Rouse complains.

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