Concurring. — I concur in the result. I do not construe the provision of the contract quoted in the foregoing opinion to be an independent covenant. The time named therein in which appellant was to obtain the patent is concurrent with the time in which respondent was to make his first deferred payment. The paragraph of the contract immediately following the one quoted is as follows:
“And it is mutually covenanted and agreed between the parties hereto that the said vendee shall be let into, and have immediate possession of said premises, but that time shall be of the essence of this contract, and that if the said vendee shall fail to pay the said deferred payments or any of them when due or the interest thereon, the said vendor shall be released from all obligation, both at law and in equity, to convey said property, and in such event, the vendee shall forfeit all right to said property, and all payments theretofore made by him shall be forfeited to the said vendor.”
The contract upon which respondent relied, containing a provision whereby his right to recover the money paid upon the contract might be forfeited, it was incumbent upon him in stating a cause of action for the recovery of the money paid to negative the existence of the conditions.which *245might work a forfeiture. The covenants in the contract being concurrent in time, and as I think mutual, respondent in his complaint, in order to state a cause of action, must allege that at the proper time he made a tender of performance of his own covenant, or matters which would excuse a tender. Nothing appears in the complaint which excused a tender. But in any event in order to escape a forfeiture he must have alleged that he was ready, able and willing to perform. No such allegations appearing in the complaint, the general demurrer thereto should have been sustained. The objection that the complaint fails to state a cause of action addresses itself to this court, whether assigned as error or not. (West. Loan & Building Co. v. Gem State Lumber Co., 32 Ida. 497, 185 Pac. 554.)
I do not think the allegation, of appellant in his cross-complaint to the effect that respondent had sought and obtained an extension of time in which to make the first deferred payment was made a matter of defense by the reference in his answer to the cross-complaint. It is an attempt to incorporate an entire pleading by reference, a method of pleading which is not permissible. In this case the reference, if it could be considered at all, could only bring into the answer such portions of the cross-complaint as bore upon appellant’s denial that he had contracted to furnish patent. The purpose of the reference cannot properly be enlarged so as to bring into the answer a new and distinct defense, namely, that of estoppel or waiver. Likewise, the evidence concerning an extension granted to respondent could only be considered as bearing upon the question of the reformation of the contract.