85 Cal. 518 | Cal. | 1890
It is alleged in the complaint that plaintiff and defendants entered into an agreement of which the following is a copy:—
"Biggs, Cal., March 29, 1888.
"Received from C. E. Chatfield three hundred dollars, for which McDaniel & Co. agree to cause to be conveyed, by bargain and sale deed, to said C. E. Chatfield, the following land in Butte County, California,'shown on the plat of Pitt’s addition, and upon the terms following, to wit: Lot Eo. one (1), containing 4.45 acres, in said Pitt’s addition to the town site of Biggs, as per map on file with the recorder of Butte County, payable at Biggs, as follows: $434.25 on or before October 1st, from date, with eight per cent interest. Time is hereby expressly agreed to be the essence of this agreement.
“ McDaniel & Co.”
That plaintiff on October 1, 1888, tendered to defendants said sum of $434.25, with interest, and demanded that defendants cause the lands to be conveyed to him, but they refused, and still neglect and refuse, to convey the same or return to plaintiff the three hundred dollars paid by him. The prayer is for a judgment for the sum of three hundred dollars, with legal interest and costs.
We think the amendment ought to have been allowed. The answer was filed on April 28,1889, and no demurrer or motion to strike out was filed, and no notice that judgment on the pleadings would be asked was given, until the parties announced themselves ready for trial, September 17th. There was an attempt to deny the allegation as to tender, and there is nothing in the record to show that it was not made in good faith. It does not appear that any delay would have been caused by the proposed amendment; but if there had been, the court could have required an immediate amendment, and imposed terms commensurate to the time and expense of the continuance. The denial is verified. It may be, as claimed by respondent, that the learned judge had reason to believe, from continuances and other pro
As the case is going back for further proceedings, we may aid the court below by saying that the contention of appellant as to the sufficiency of the allegations of the complaint, in our opinion, are not well taken. The plaintiff was not bound to tender the defendants a conveyance for execution. It was the duty of the defendants, on tender of the balance due under the contract, to execute and deliver a deed of conveyance to plaintiffs. (Camp v. Morse, 5 Denio, 164.) Nor was it necessary to allege or show that plaintiff gave defendants notice of rescission, or that he demanded a return of the three hundred dollars. Where the vendor under such a contract, on tender of the balance of purchase price, refuses or neglects to convey, his default authorizes the vendee to treat the contract as at an end, and to recover the money which has been paid. (Gillet v. Maynard, 5 Johns. 85; Van Benthuysen v. Crapser, 8 Johns. 259; Frost v. Smith, 7 Bosw. 108.) Judgment reversed, and cause remanded, with directions to allow the defendants to amend their answer as to denials, but in no other respect.
Beatty, C. J., Works, J., McFarland, J., Fox, J., and Sharpstein, J., concurred.