Concurring in Part and Dissenting in Part.— I concur in that portion of the majority opinion sustaining the finding of the trial court that the evidence did not warrant a reformation of the contract, under the general rule that where there is a conflict of evidence, and there is substantial evidence, if uncontradicted, in the record, to support *246a finding by the trial court upon that issue, such finding will not be disturbed on appeal.
I am not in accord with the remainder of the majority opinion. In my opinion the complaint states two causes of action; first, for a breach of an independent covenant, and second, upon an implied contract for reimbursement for money expended by respondent for appellant’s use and benefit.
The covenant in the contract: “That in the event said vendor fails within one year to secure a patent to said land, then he shall refund, back to vendee all money paid bim together with interest thereon at the rate of seven per cent per annum,” is an independent and not a mutual or concurrent covenant, and when breached by appellant worked a cancelation of the contract, which being true, it was not necessary in order for respondent to state a cause of action, to allege in his complaint that he was ready, able and willing to make a deferred payment which fell due on or before the expiration of the year within which appellant was to secure a patent, or to allege a restitution of the premises. Particularly is this true in view of the fact that it would be a mere idle act, which, under the authorities which are too numerous to cite, is never required, in order to state a cause of action.
Neither am I in accord with that portion of the majority opinion which holds that the following allegation contained in the answer: “That he never consented or agreed with plaintiff to secure and deliver a patent to said lands within one year or within any other period, as is more particularly set forth in the cross-complaint made a part of defendant’s pleading herein, and herein referred to and made a part hereof,” should be or was intended by the appellant to be considered for any other purpose than to make the cross-complaint a part of the answer in relation to his plea for reformation. It is clear that the pleader only intended to make the cross-complaint a part of the answer for the sole purpose of further pleading his right to a reformation. It was incumbent upon appellant in order to take advantage of waiver or estoppel in pfds against respondent’s right to *247recover upon the breach of an independent covenant to have incorporated in his answer as an affirmative defense facts sufficient to constitute an estoppel or waiver, and upon the trial to introduce proof in support thereof. Under no rule of pleading is it permissible to lift out of a cross-complaint, in the absence of a sufficient allegation, certain alleged facts that should have been set up in the answer as an affirmative defense, in order to present an issue that in the first instance should have been alleged in the answer. The cross-complaint is in the nature of an independent action, and the usual tests of sufficiency must apply to a cross-complaint as to a complaint.
The majority opinion in holding that the cross-complaint might be considered as affirmative allegations in the answer enabled appellant to shift his position in this court for the first time, and to seek relief upon a different theory than that upon which the action was tried and the issues framed, thereby defeating respondent’s right to recover in this court. This is made clear when we consider the following statements contained in appellant’s original brief, wherein he states:
“The action of Chamberlin being a legal action, and there being no- dispute over the amount of money paid by him under the contract, a jury was waived; the cross-complaint of Ivens asking for a reformation of the contract, being an equitable proceeding, its determination devolved upon the court. Thus, there is no contested issue in the ease save and alone the question of the mistake of the attorney in the use of ‘patent’ instead of ‘final certificate’ in drafting the contract, and the crux of the case is whether appellant, Ivens, is entitled to have the contract reformed accordingly, with the result that Chamberlin’s judgment be reversed.”
In other words, appellant admits all of the indebtedness due upon the second cause of action, and admits that the cross-complaint sought equitable relief only, viz., a reformation of the contract, and was never intended to be considered as a part of the answer for the purpose of alleging that by reason of certain acts and conduct upon the part of re*248spondent he was estopped from declaring a forfeiture of an independent covenant.
Again, counsel in his original brief, in his statement of facts, makes the following statement:
“This appeal presents to this court the single question, namely: Should the contract between appellant and respondent be reformed, under the evidence, by substituting the words ‘final certificate’ for the word ‘patent,’ the attorney who drew the contract having used the latter word by mistake ? ’ ’
And again, under the designation “Argument,” in appellant’s original brief, he states:
“As stated in the opening of this brief, there is but one question in dispute in this case: Should the contract entered into on May 9, 1919, between Ivens and Chamberlin, respectively appellant and respondent, be reformed by correcting the mistaken use of the word ‘patent’ instead of the words ‘final certificate’ in the contract, by the attorney who drew the contract?”
To my mind there is only one proper solution of this cause, and that is for this court to pass upon the only issue presented to the trial court and to this court, viz., whether appellant was entitled to have the contract reformed, and so far as this question is concerned the complaint states a good cause of action. If appellant was not entitled to have the contract reformed, there was a clear breach of an independent covenant and respondent was entitled to a return of his money, with interest, upon his first cause of action, and to recover upon his second cause of action for money expended on appellant’s behalf.
This cause is being reversed, as I understand it, upon the theory that the complaint fails to state a cause of action, in this, that respondent failed to allege that he was ready, able and willing to make a deferred payment which fell due at the expiration of the year within which appellant was to secure a patent. The making of the deferred payment was totally disconnected with and had no reference to the obligation resting upon the appellant to secure the patent. The *249contract does not so provide, neither does it make the making of the deferred payment a condition precedent to or concurrent with securing the patent.
Even conceding that the covenants were mutual and concurrent, appellant repudiated the contract, in this, that he said that he never promised or agreed to secure a patent; that being true, respondent was not called upon to perform any of the conditions of the contract that were precedent or concurrent to his right to declare a breach. (Holt v. United Security L. I. & T. Co., 76 N. J. L. 585, 72 Atl. 301, 21 L. R. A., N. S., 694.)
McCarthy, J., concurs.