Dowd v. Clarke

54 Cal. 48 | Cal. | 1879

Lead Opinion

By the Court:

As we construe the lease of March 27th, 1866, it provides: 1st. That the lessee may elect to purchase at any time during the term, in which event he shall pay to the lessor during the term, the sum of $6,000 in gold coin, with interest from the date of the lease at the rate of one per cent, per month, and any payments, which in the meantime shall have been made for rent, shall be credited on the interest; 2nd. That if the lessee elects to purchase, he shall also pay, in addition to the principal and interest, whatever sum shall, in the meantime, have been levied on the land and paid by the lessor for taxes from the date of the lease; 3rd. That from the time the lessee elects to purchase, the interest shall thenceforth be paid on the first days of January and July in each year; and if not so paid, shall be compounded at the rate of two per cent, per month until paid ; 4th. That if the lessor shall have incurred expenses by reason of the failure of the lessee to perform the covenants by him to be performed, the same shall be refunded by the lessee, with interest at the rate of two per cent, per month, compounded monthly.

There is no conflict in the evidence as to the fact that, before suit was brought, the plaintiff notified the defendant, during the term, that he elected to purchase under the provisions of the lease, and that the defendant refused the tender, and denied that the plaintiff was entitled to purchase under the lease. He ignored altogether the right of the plaintiff to purchase, and on well-settled principles this was a waiver of the necessity of a tender before bringing suit. But in his complaint the plaintiff avers that he is ready and willing, and offers to comply with all the terms and conditions of the agreement, and to pay any sums that may be due the defendant for the purchase of said premises under the contract. This, we think, is sufficient to entitle him to a specific performance of the agreement.

It is unnecessary to determine on this appeal whether the interest ceased from the time of the tender and the refusal of the defendant to recognize the plaintiff’s right to purchase.

Judgment and order reversed, and cause remanded for a new trial.

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Rehearing

By the Court, upon rehearing:

The opinion heretofore rendered will remain as the opinion of the court upon the points therein decided, the rehearing having been limited to the question reserved in the opinion—the question of interest.

The defendant is entitled, in our opinion, to interest upon the price to be paid for the land—$6,000—from the date of the lease, at the rate of one per cent, per month, the amount of the payments of rent to be deducted from the interest, (Fry on Spec. Pcrf. sec. 919) and also to interest at the legal rates, upon the several sums that the defendant may have paid for taxes levied upon the land since the date of the lease.

Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith-.