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it is coupled with a demand for the performance of reciprocal duty enjoined by law upon the person to whom the tender is made." 28 Am. & Eng. Ency. of Law (2d Ed.) 33. "For the purpose of avoiding * the loss of any rights or privileges, the tender is the exact equivalent of payment, and it does not have to be repeated. Tender when rejected operates as payment." Words and Phrases, vol. 8, pp. 69, 110.

We are justified in concluding that, if tender had been made to Stratton living, within the life of the contract, its effect as such would not have been impaired by a demand for a delivery of the notes and an assignment of the decree. The tender, although accompanied with such demand, would for the purpose of saving rights have been the equivalent of payment. That such would have been the effect of the tender, if made to Stratton living, we do not understand to be denied; but it is said that the demand, coupled with the offer to the bank, defeated its operation as a tender. The contract gave to Finnerty, or his assignee, the option of making payment to and at the bank, and in terms provided that, upon payment being so made, the notes would be delivered and the decree be assigned. The obligation of Stratton, according to the terms of the contract, was to be the same whether payment was made to him in person or to and at the bank. The rights of Finnerty were to be the same whether he paid Stratton in person or made payment to and at the bank. The rights of Finnerty, or his assignee, were dependent upon his making payment in one of the modes prescribed by the contract, and his rights were to be the same whichever mode of payment he saw fit to adopt. This being true, if tender of payment to Stratton would entitle Finnerty to demand contemporaneously therewith a delivery of the notes and an assignment of the decree, and if such tender, coupled with such demand, would operate as a payment for the purpose of an acceptance of the option and an avoidance of the loss of any rights thereunder, such tender made to the bank, coupled with such demand, had a like effect as if made to Stratton. Mueller v. Nortmann, 116 Wis. 469, 93 N. W. 538,1 is in point. Klein, for a valuable consideration, gave plaintiff this option: "In case said J. F. Mueller elects to purchase said land under this option, he is to pay at the office of Theo. Mueller, in Milwaukee, Wis., within four weeks from date thereof, $4,975, when a warranty deed of said land shall be delivered. ?? Within the time limited, plaintiff tendered at the office of said Theo. Mueller the sum mentioned in the option, but the said Mueller refused to accept the same, assigning as his reason therefor the death of Klein. An action was brought to enforce specific performance. The court held that the action would lie, saying: "Within that period [the period named in the contract] the plaintiff did everything that the written op19C Am. St. Rep. 997.

tion required him to do. He went to the office designated, and tendered the sum specified as his election to complete his option. That tender was to the very person designated in the option, at whose office the money was to be paid. The payment of the money at the place stated was the only condition imposed upon the purchaser. * The

tender at the place designated, was all that the option required." We think that the tender at the bank was an acceptance of the offer, that it satisfied the condition necessary to entitle the appellant to a delivery and assignment of the securities contracted for, and that a mutual contract then arose by appellees to deliver and assign, and by appellant to pay.

2. It is next contended that the judgment below dismissing the complaint should stand, because the complaint, even though it stated facts showing a valid contract to assign the securities, did not state such facts as entitled appellant to specific performance, because it is said appellant had an adequate remedy by an action at law. for damages. The following are the facts pertinent to this question, as such facts appear from the complaint: July, 1902, a decree was entered in said suit of the United States Mortgage & Trust Company against H. C. Brown, finding the amount due June 20, 1902, on the unpaid notes secured by said mortgage to be $623,332.32, the mortgage to be a first lien on the real estate covered thereby, and ordering a sale of said real estate to satisfy said indebtedness and the expenses of foreclosure. The aggregate indebtedness to satisfy which the sale was to be made was $662,000. July 16, 1902, Stratton made the contract hereinafter set out to sell said securities for $650,000, to be paid on or before 60 days. Stratton died before the expiration of the life of the option. After his death, and before the expiration of the 60 days, the tender, hereinbefore set out, was made, and this suit was brought December 5, 1903. Appellant desired to become a purchaser of the Brown Hotel property. At the sale ordered to be made under the decree it would require about $700,000 to make the bid. By becoming the owner of the notes, mortgage, and decree, appellant would have legitimate advantages in bidding at the sale that others would not have. By owning the securities the enormous sum, which he would probably have to bid at the sale, would draw interest from the date of his purchasing the securities to the date of sale, regardless of any postponement thereof. The officer making the sale might be slow in fixing a date of sale. The sale when noticed might be postponed. The sale when made might be set aside by the court. In the event appellant became the purchaser at the sale, he might acquire the property, or there might be a redemption from the sale within any time before the expiration of nine months from the date of sale. How long his money would remain so invested is uncertain.

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 therefrom, 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. * 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. Adams, 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. derly v. Dixon, 1 & 2 Sim. & Stu. 607, was specific performance at the suit of the ven

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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 while 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 further 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. 265, specific performance was sustained upon an agree ment 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 defendant 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 promissory notes. The action was upheld. The court, inter alia, said: "Now, in this case the appellant agreed to sell to the appellee three promissory notes of Weiler & Son, and appellee agreed to buy these notes for a specific purpose, which was known to the appellant. Ar. action at law for a breach of the contract would not, it is clear, give to the appellee the subject-matter of the contract; and, besides, the damages to be recovered must necessarily be uncertain."

The principle of law announced by the fore. going authorities, and by others not cited. is that if, under the facts of the particular case before the court, there is not an adequate remedy in an action at law, specific performance will lie; whether the action can be maintained depends upon the facts of each particular case. In the case before us, an action at law will not satisfy the justice of the case, because it will not give to appellant the specific securities which he for good reasons contracted to purchase of Stratton, and because the damages by appellant otherwise sustained by a breach of the contract cannot be estimated in an action at law.

The former opinion herein will be withdrawn, and a judgment of reversal entered. Judgment reversed.

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The nuisance was a continuing one against which limitations did not commence to run at the inception thereof.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 303, 304.]

Appeal from District Court, Fremont County; M. S. Bailey, Judge.

Suit by Lucinda Ulrich against Samuel A. Wright and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Maupin, McLain & Wilkes, for appellants. Taylor &Sayre, for appellee.

CASWELL, J. This suit was instituted in the district court of Fremont county by the appellee, plaintiff below, to restrain the appellants from rebuilding and operating a slaughter house adjacent to plaintiff's premises and dwelling house which she and her

family had occupied for about 20 years. It seems that the first slaughter house, which had been erected some 8 or 10 years prior to the commencement of this suit, was destroyed by fire, and that plaintiff had objected to the rebuilding of the house, and had objected to and complained of the injury and inconvenience to her on account of the odors fron the slaughter house and its use and the noise resulting from the keeping of cattle in pens adjacent to the slaughter house. The answer in effect is a denial of the allegations of the complaint, and defendants also plead the statute of limitations.

The main contention of appellants as set forth in their brief is that there is not sufficient evidence to support the allegations of the complaint, that there is not sufficient evidence to support the judgment, and that the judgment is based upon "a remote sentiment of future possible annoyance, not warranted by the facts." The record does not support this contention. It is clearly shown by the abstract, and the additional abstract filed by appellee, that the plaintiff had suffered much annoyance and inconvenience because of the odors and stenches which had emanated from the use of the slaughter house. This is shown, not only by the evidence of her own family, but strangers to the suit testified positively as to the sickening odors which had reached them from the slaughter house at a point about the same distance therefrom as plaintiff's dwelling house. Indeed, there was not very much conflicting testimony. However, this matter was submitted to a judicial determination, and the court found as a fact that the maintenance and operation of the slaughter house and its adjuncts by defendants "constituted and constitutes a continuing nuisance, resulting in rendering plaintiff's occupancy of her dwelling house and premises described in the complaint in this cause disagreeable and uncomfortable by reason of the noxious vapors and noisome smells and stenches emitted therefrom, which are a constant menace to the health of plaintiff and her family, materially impair the usefulness of said property, and greatly decrease its value that the damage to plaintiff therefrom are of such a nature and character, of such proportions and so peculiar to herself, as to entitle her to equitable relief herein."

We think the findings of the court are amply sustained by the evidence. We do not find any error in the law as applied by the trial court to this case. Without entering into an extended discussion of the law concerning nuisances both public and private, the City of Denver v. Mullen et al.. 7 Colo. 345, 3 Pac. 693, furnishes ample authority for the plaintiff to maintain this action. The suit is manifestly to abate the nuisance, regardless of damages, and any private nuisance may be abated by the party aggrieved. In Wood's Law of Nuisances, § 22, it is said: "As to what constitutes a nuisance is a question for the court and not for the jury to determine.

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. At 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. Hamlin, 6 Colo. App. 341. 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, by 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.

STEELE, C. J., and MAXWELL, J., con

cur.

(36 Colo. 355)

BIG THOMPSON & PLATTE RIVER
DITCH CO. v. MAYNE.

(Supreme Court of Colorado, April 2. 1906. Rehearing 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 amount 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.

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, defendant appeals. Reversed and remanded.

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

BAILEY, J. Appellant, who was defendant below, is a mutual ditch company, delivering 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 headgate, and from these reports he made his 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

port is not admissible as evidence, although the matters stated therein may be material. McClure v. La Plata County, 19 Colo. 122, 34 Pac. 763. While some of the authorities hold that a record may be introduced in evidence, even though the keeping of it may not be required by law, if it is essential to the conduct of the office, yet the matters recorded must be within the knowledge of the officer at the time he records them. 1 Greenleaf on Evidence, § 493.

The memorandum book kept by the water commissioner was not admissible to prove any of the issues in this cause. We do not deem it necessary to consider the other errors assigned, and the judgment will be reversed and remanded.

Reversed.

GABBERT, C. J., and GODDARD, J., con

cur.

(76 Kan. 134)

KREMER v. KREMER. (Supreme Court of Kansas. July 5, 1907.) Modification of judgment. Case remanded to lower court, with instructions.

For former opinion, see 90 Pac. 998.

PER CURIAM. Since the order awarding the land to the defendant was reversed in this case, the parties have agreed that, as the record discloses all the facts in the case, this court may accept them as agreed to and direct the judgment to be rendered. The case is therefore remanded, with instructions to award the land in question to the plaintiff as her separate property, and to set aside the judgment in favor of the plaintiff against ⚫ the defendant for $1,250, which was made a lien on the land, and that in all other respects the judgment be the same as before.

(76 Kan. 311)

ROUSE v. ROUSE et al. (Supreme Court of Kansas. July 5, 1907.) DESCENT AND DISTRIBUTION-RIGHTS OF SUBVIVING WIFE-ANTENUPTIAL AGREEMENTCONSTRUCTION.

An antenuptial agreement provided that the property owned by either party should, after the marriage, remain the separate and distinct property of such owner, and neither should have or exercise any right, title, or estate in the property of the other, and each might at his or her option dispose of such property by will or otherwise except that the husband should not, during the lifetime of the wife, so dispose of his property as to jeopardize or render nugatory a subsequent provision for her benefit, by which he agreed to furnish her proper and comfortable support so long as they lived together as husband and wife, or, in case she survived him, so long as she remained his widow. After living together 30 years the husband died intestate. Held, that the agreement did not exclude the widow from her right of inheritance in the husband's property.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Descent and Distribution, § 150.]

(Syllabus by the Court.)

Error from District Court, Miami County; W. H. Sheldon, Judge.

Action by Jane Rouse against J. W. Rouse and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

Alpheus Lane, Benson & Harriss, and W. J. Costigan, for plaintiff in error. Frank M. Sheridan, for defendants in error.

PORTER, J. This suit was for partition of lands, and the construction of an antenuptial contract is the only question involved. George W. Rouse died intestate in Miami county August 9, 1903, at the age of 82 years. He owned about 200 acres of land at his death, and left surviving him, in addition to several children of a former marriage, his widow, Jane Rouse, and one child by her. The controversy is between the children of the first marriage and Jane Rouse. the widow. He married Jane Rouse in 1874. Immediately before the marriage they entered into the following contract:

"Know all men that we, G. W. Rouse, of Miami county, state of Kansas, and Jane Sewel, of the same place, in consideration of mutual promises of marriage between made, have this day agreed and we do by these presents agree, that in case said marriage takes place, that the property real and personal now owned by either, or which may hereafter be acquired by either, shall after the solemnization of said marriage, be and remain the separate and distinct property of such owner, and neither shall have or exercise any rights, title or estate in the property of the other, and each may at his or her option, dispose of by will or otherwise, all or any part of his or her property in such manner as may to him or her seem fit, excepting, however, that said G. W. Rouse shall not during the lifetime of said Jane Sewel so dispose of his property as to jeopardize or render nugatory the provisions hereinafter mentioned, viz. It is agreed and provided that said G. W. Rouse shall and will furnish to said Jane Sewel a good, proper and comfortable support out of his said estate, so long as they shall live together as man and wife, and also, that in case said Jane Sewel shall survive said G. W. Rouse then and in that case said Jane Sewel shall have a proper and sufficient support according to her station in life out of the estate of the said G. W. Rouse during the term of her natural life, or so long as she remains the widow of said G. W. Rouse.

"Witness our hands and seals this 23d day of June, A. D. 1874.

"G. W. Rouse. [Seal.] "Jane Sewel. [Seal.]"

The district court held that by the terms of the agreement Jane Rouse took no interest in any of the real estate. Of this holding Mrs. Rouse complains.

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