I dissent.
There are some questions which arise in this case which are not answered or disposed of by the opinion. They can best be seen from a terse statement of the essential facts out of which they grow. Goff bought certain lands from Allen for $10,000; he paid $2,500 for Doyles' equity; he contracted to pay Allen $7,000; and he (Goff) was to pay the delinquent taxes in the sum of $500. Since Goff did not have the $500 to pay the taxes, Carlquist induced Allen to waive immediate payment of the taxes by assuring Allen that he, Carlquist, would see that Goff paid the taxes. Goff then executed his note to Carlquist for $500. The next year when dispute arose over the condition of the land with reference to white top, etc., Allen compromised the dispute by accepting from Goff the sum of $4,400 in full payment for the land, which therefore included all Goff's obligations under the contract; covering both the agreement to pay the delinquent taxes ($500) and the $7,000 additional to Allen. This creates a situation whereby: (1) Allen was to pay the delinquent taxes out of the $4,400; or (2) Goff waived the requirement that the title be free of the tax lien, and assumed to pay that himself; or (3) that both parties waived the matter of taxes on the assumption and ground that the payment of delinquent taxes had been assumed by and had become a new and separate obligation of Carlquist and that both Allen and Goff had accepted Carlquist as the only person liable to either for the payment of taxes, and therefore the matter of taxes would not be involved as between Allen and Goff. Allen then gave Carlquist $535 which he turned over to the *Page 513 county to clear the land of the delinquent taxes, and Allen took a note from Carlquist for $535 which note subsequently became the basis of this action. At this time, Carlquist was not advised that Allen was making a new contract with Goff, relieving Goff from his obligation to pay the taxes. Carlquist thought that Allen had cancelled the Goff contract and was calling upon Carlquist to make good on his promise to see the taxes were paid. This payment of taxes by Allen shows that in the $4400 compromise settlement between Goff and Allen, Allen was to pay the delinquent taxes. Since this had been a direct obligation of Goff's it would seem to definitely establish proposition (1) as stated above.
Referring back now to the original deal between Goff and Allen, when Goff made his note to Carlquist for $500, we have three possible situations (a) Goff, who was to pay the taxes, borrowed the $500 from Carlquist, as evidenced by his note, the money to be applied by Carlquist in payment of the taxes; (b) Carlquist was not to advance any money, but, acting for Allen, was to negotiate the Goff note or collect the same from Goff, and use the money so derived to pay the taxes; or (c) Since Carlquist had given his word of assurance to Allen that he would see that the taxes were paid, he held Goff's note to protect himself should he be called upon by Allen to make good his promise to see the taxes were paid.
It is evident from the record that proposition (a) could not have been the understanding of the parties. If (b) represents the situation, then when Allen reduced the entire Goff obligation to $4,400, he cancelled the Goff note to Carlquist, since as between them, the real property in the note was in Allen. (c) If that note was to protect Carlquist by giving him evidence for a recourse against Goff if he, Carlquist, was required to make good on his assurance to Allen that Goff would pay the taxes, then Carlquist would be merely a surety or guarantor, and would be released from liability on his promise of assurance when Allen settled *Page 514 with Goff for $4,400, and Goff's note to Carlquist would become null and void, and of no further effect in the hands of the parties.
When Allen and Goff agreed to settle the whole affair for $4,400, Goff was to make a loan so as to pay cash. To procure the loan the taxes had to be paid, so Allen talked to Carlquist about Carlquist's promise to see the taxes were paid. I epitomize the record as to all that appears as to the taxes. Carlquist testified that when the first deal was made with Goff, he told Erskine (with whom he did the business for the Erskine-Allen interests) that he would see the taxes were paid, and gave Erskine a letter to that effect. "I finally agreed that I would see that Mr. Goff paid them" (the taxes). Carlquist did not agree to pay them. (Trans. 11.) And the deal was closed by Goff assuming a contract unpaid balance of $7000, and giving a note for $500, "the proceeds of that note to liquidate the taxes." (Trans. 6.) Soon thereafter Erskine died and Allen took charge of the Erskine-Allen end of the deal. When Allen came up from California in 1925, he called on Carlquist to make good on his promise to Erskine. "May I say I had agreed to have Mr. Goff pay the taxes, and Mr. Goff had given me a note to make good his promise to me that he would pay those taxes." (Trans. 16.) "Mr. Allen said: `Mr. Carlquist, I will take your note and you pay those taxes with the money I let you have, and then you can get your money from Mr. Goff later.' There was the obligation I had from Goff which would offset it." (Trans. 17.)
On this matter Goff testified that his original purchase price was $10,000 on which he deeded Duchesne property at $2,500 (and signed a $7,000 contract and a $500 note; that he gave the note as a part of the consideration of the $7,500 balance on the land and that "I would be liable for that much for taxes." (Trans. 37.) That by the later contract with Allen for $4,400 he was to be relieved of all other obligations of every kind. (Trans. 42.)
Then with reference to the conversation with Allen wherein *Page 515 the settlement at $4,400 was arranged, Goff testified (Trans. 26):
"Q. What if anything was said in that conversation as to what was to be included in the settlement? A. That was to be all the obligations; that the place was to come to me clear, except for my obligation to the state.
"Q. Were you to be relieved of this obligation to Mr. Carlquist on the note? A. That was my understanding, that was all I owed. When I signed that [the $4400 state loan] over to them, I figured that was all I owed on the place * * * they [Allen-Erskine] agreed that is I would borrow what I could on that [the land] and pay the balance [$4400] that the place would be mine after I had paid back to the State." (Trans. 27.)
Then after testifying he had not paid the note to Carlquist, although several demands were made:
"I told them I did not owe it * * * because I had made a different deal and settled through Walter C. Hurd and Allen." (Trans. 28, 29.)
"Q. And the amount you agreed to pay for the two interests was $4400 on the final settlement? A. Yes sir.
"Q. And by that amount, by the payment of that amount you stated you were relieved of all other obligations of every kind? A. Yes sir.
"Q. You stated that you paid to Allen and Erskine's estate the entire $4400 that you agreed upon in settlement of all obligations up to that time? A. Yes sir." (Trans. 42.)
Carlquist testified that he was in California when Allen sued him on the $535 note; that at such time he understood Allen had cancelled out the Goff contract for default and so considered himself liable on the note to Allen; that he did not know until this present suit that Allen had accepted money from and relieved Goff from all liability growing out of the first purchase contract and thereby released Goff from liability on the original note, and had settled with Goff, the latter's liability for the taxes. When he learned that he commenced to fight.
I see no escape from the conclusion that by the original contract Goff assumed and was to pay the $500 back taxes; that he executed a note for $500, delivered to Carlquist, but *Page 516 actually for the benefit of the Erskine-Allen interest, the proceeds thereof to be applied on the taxes; that Carlquist gave Erskine a letter of assurance that he would see that Goff paid the taxes; that when Erskine died and Allen entered the deal, he, Allen, released Goff from all liability including the tax liability evidenced by the $500 note, growing out of the original contract, upon payment of $4,400 cash; that by the new contract with Goff Allen agreed and assumed to pay the back taxes; that the $535 note from Carlquist to Allen was obtained by Allen by concealing from Carlquist the fact that Allen had made a new contract with Goff releasing Goff from the tax liability, and so from the $500 note, of which Erskine and Allen were the real parties in interest; that Carlquist received no consideration for the $535 note, and that judgment should have been for the defendant.
I think the pleadings were ample to raise all these questions and to require findings thereon.
I think the judgment should be reversed.
MOFFAT, Justice, deceased. *Page 517