25 Cal. 266 | Cal. | 1864
On the 25th of October, 1851, José M. Amador, being seized of certain land in Contra Costa County, sold and conveyed the same to Leo Norris, part of the purchase money remaining- unpaid. On the 3d of February, 1852, Amador brought suit against Norris to recover the unpaid purchase money and enforce his vendor’s lien therefor. On the 19th of February, 1S52, the action thus brought was compromised between them by an instrument in writing, wherein it was agreed that all existing contracts between them should be annulled and rendered void, and that Amador should dismiss his suit, and that Norris should pay to him the sum of six thousand dollars, including sums already advanced, and also relinquish by quitclaim deed all the land which Amador had conveyed to him, except one square league in the northwest corner of the tract. On the 28th of April, 1852, Amador made a formal conveyance to one William Claude Jones of a portion of said land, described as the Alamo or Sycamore Valley. On the 13th of July, 1852, Jones conveyed to Hall McAllister, who, on the 15th of the same month, conveyed the same to Franklin C. Gray, since deceased, whose widow
The present action is brought for the purpose of procuring a conveyance of the legal title to the Sycamore Valley; or, in other words, for the purpose of enforcing, as against Dougherty and Martin, specific performance of the agreement between Amador and Norris to the extent of that valley.
On the 20th of March, 1852, Amador brought suit upon the same contract against Norris to obtain judgment for the balance of the six thousand dollars due him under the contract, and for the further sum of thirty thousand dollars, as damages for the breach of other covenants contained therein, including the covenant to convey, and also to obtain a decree for the specific performance of the last named covenant by quitclaim deed to the entire ranch,, except one league in the northwest comer, including said Sycamore Valley. In said action there was rendered, on the 4th day of November, 1854, *, a final judgment in favor of Amador for the sum of one thousand six hundred dollars and costs of suit. This one thousand six hundred dollars was the balance of the six thousand dollars which the jury found was due and unpaid. No judgment was rendered or denied, except by implication, for damages on account of the breach of the covenant to convey, nor was a decree for specific performance granted or refused in
The plaintiffs and defendants, with respect to their rights and obligations under the agreement of the 19th of February, 1852, occupy no better or worse position than did Amador and Norris in their suit upon the same agreement. The plaintiffs have acquired no higher rights by virtue of their deeds than Amador held at the time he sued Norris, nor have the defendants incurred any greater obligations than were imposed on Norris by the agreement in question. Suppose, then, that no conveyance had been made by either Amador or Norris, could the former maintain a second action against the latter upon the agreement in question, notwithstanding the judgment in the former suit.
The former judgment of a Court having jurisdiction over the subject matter and the parties is a bar to a second suit upon the same cause of action between the same parties, or those claiming under them. And such a judgment is conclusive upon any question directly involved in the suit, and upon which it depends, although the subject matter of the second action be different. It is not only final as to the subject matter thereby determined, but also as to every other matter which the parties might have litigated in the cause, and which they might have decided. (LeGuen v. Gouverneur and Kemble, 1 John. Cases, 436.) It must appear, however, that the subject matter or question was not only the same, but that it was submitted on its merits and actually passed upon by the Court; for if the trial went off on a technical defect, or because the cause of action had not yet accrued, or because of a temporary disability of the plaintiff to sue, or the like, the judgment will not be a bar to a future action. (Greenleaf on Evidence, Sec. 530.) These facts may be ascertained by an inspection of the judgment roll in the former suit; and if that fails to disclose all the facts necessary to a complete deter
To support the plea in bar, defendants rely upon the judgment roll in Amador v. Norris, unaccompanied by any other evidence. By an inspection of the record in that case it appears that the written contract upon which the plaintiffs in the present case base their right to relief is the same upon which Amador sued, and upon which he relied for a recovery against Norris.
It further appears that the same relief was sought by Amador which is sought by the plaintiffs in the present case, and, so far as the particular cause of action in question is concerned, that the averments and proofs in Amador’s case were substantially the same as that in the case at bar, except in the following particulars: In the present case there is an averment of a special demand for a deed, and a refusal, but in Amador’s case no such averment was made, there being only the general allegation that Norris had wholly failed, neglected and refused to make the deed in question within one month from the date of the contract as required by its terms. In all other respects the two cases are the same. This difference, in our judgment, is the pivot upon which the question under consideration must turn. If a demand for the deed, before suit, was necessary in order to enable Amador to maintain his action and entitle him to a decree for a deed or a judgment for damages, and no such demand was averred or proved, or, in fact, existed, his cause of action had not accrued at the time the suit was brought,
Independent of the question of demand, it is contended by counsel for the plaintiffs that it appears from the judgment roll in Amador v. Norris, and especially from the verdict of the jury, that Amador’s cause of action had not accrued, in the opinion of the Judge who tried the case, because of the nonperformance by Amador of the contract of the 19th of February, 1852, in the following particular: It seems from the answer of Norris that Amador, at some time previous to the contract of the 19th of February, had sold, and contracted in writing to convey to Norris and one Lynch, a tract of land, three thousand yards long by one thousand yards wide, the same being a part of the league of land reserved to Norris by the contract upon which the action was brought. In his answer Norris avers that the annulment of this contract was included and stipulated in the contract of the 19th of February, and that Amador had not obtained a release of said contract from Lynch, as he was bound to do, and had therefore in this respect, and to that extent, failed to perform the contract of the 19th of February. The jury found as a fact that the contract with Lynch and Norris had been made by Amador as alleged in the answer, and that Amador had not obtained a release thereof from Lynch.
The agreement to annul and make void all contracts existing between them, in general terms, without any particularization, cannot be construed to include contracts to which there were other parties than themselves. To annul such contracts neither Amador nor Norris had the power without co-action on the part of the other parties, and, in the absence of express words to that effect, we cannot say that they intended to do that which obviously they had not the power to do. Besides, the agreement does not contemplate a future annulment of all contracts between them, as contended by counsel for plaintiffs ; on the contrary, the agreement itself performs the act of annulment, exprqprio vigore, and leaves no further act of cancellation or annulment to be performed. In this particu
Independent of the question of demand, it is further contended by counsel for the plaintiffs that the “ conclusions” of the Court show that the equitable matter contained in the verdict, or in other words, the right of Amador to a deed, was not considered or passed upon by the Court. It is argued with much plausibility that it was the duty of the Judge to frame his conclusions of law so as to embrace and cover all the facts-presented for his consideration, or in other words to state all the conclusions of the law, both affirmative and negative, arising upon the facts contained in the verdict, thus separating the different causes of action and rendering a distinct judgment as to each; and auxiliary to this, it is further contended that the pleadings call for two distinct kinds of relief—one legal and the other equitable—and a judgment awarding the first only cannot be held to comprehend and include a denial of the latter; that there was such a misjoinder of causes of action that the Court could not afford relief upon both, and for that reason did not assume to do so, but granted one only, leaving the plaintiff to seek the other in a second action.
The one hundred and forty-eighth section of the Practice Act provides that a judgment of dismissal or nonsuit may be entered in the following cases: First—By the plaintiff himself, at any time before trial, upon the payment of costs, if a counter claim has not been made. Second—By either
There was no nonsuit taken by the plaintiff before or after the verdict, nor was the particular cause of action in question in any manner withdrawn from the consideration of the Court at any stage of the proceedings, nor was there a judgment without prejudice. Such being the case, the presumption is that the Court, pursuant to the provisions of the one hundred and forty-ninth section of the Practice Act, requiring it to render a judgment on the merits, having all the facts before it, considered and passed upon them all, and granted to the plaintiff all the relief to which, in the opinion of the Court, he was entitled. Under such circumstances the silence of the Court must be held to be a denial of further relief.
The fact that both legal and equitable causes of action were joined in the complaint was no impediment in the way of the Court’s granting full relief upon both, if warranted by the facts. Both arose out of the same transaction, and were founded upon the same written instrument, and there seems to be no good reason why, in such cases, the whole matter should not be litigated, and finally settled and determined in the same action. Admitting that a ground of demurrer existed, it was such'as may be waived under the statute by not demurring. Although a demurrer was interposed, it does not seem to have been pressed to a judgment, and the presumption is that it was withdrawn or abandoned.
Thus, the sufficiency of the plea in bar is made to depend entirely upon the question of demand. If a demand before suit was necessary, the Court was right in not giving greater
Touching the obligations of vendor and vendee, under a contract for the sale and conveyance of land, the rule in England seems to be that the purchaser, upon payment of the purchase money, must prepare the deed at his own expense and tender it to the vendor for execution, and until that has been done the vendor is not in default. But this rule appears to be founded upon a custom among conveyancers, which grew out of the complications in which modern titles in that country were involved, by the introduction of many modifications of estates which were unknown to the common law, rather than upon any legal principle disassociated from practice. By these complications an abstract of the title was made necessary for the purpose of the contract of sale. This abstract was furnished by the vendor at his own expense, and the vendee then submitted it to his counsel for inspection, who thereupon prepared the conveyance, which was afterwards tendered by the purchaser to the vendor for execution. In time this became the uniform practice among conveyancers, and early received at the hands of the Courts a favorable recognition, which ultimately ripened into judicial sanction. (Sugden on Vendors, SOS et seq.)
But the necessity for such a custom has never existed in the United States, and the rule growing out of it has never been adopted to any considerable extent. In Arkansas, the purchaser must prepare the deed at his own expense and tender it to the vendor, in accordance with the English rule. (Byers v. Aiken, 5 Pike, 419.) But in most of the other States it has been held that the vendor, in the absence of any stipulation to the contrary, must be at the expense of preparing the deed and must have it ready when called for. Such is the rule in Massachusetts, Maine and New Hampshire. (Tinney v.
In New York it was formerly held that the purchaser must pay or tender the purchase money and demand a deed, then wait a reasonable time for its preparation and again present himself to receive it, in order to put the vendor in default. (Hackett v. Huson, 3 Wendell, 250; Fuller v. Hubbard, 6 Cowen, 13 ; and Fuller v. Williams, 7 Cowen, 53.) But that doctrine has since been modified so as to dispense with the second request; and some doubt has been expressed as to the necessity for any demand where the contract calls for the execution of the deed on or before a day certain; but even in such cases a demand has not yet been held to be unnecessary. (Carpenter v. Brown, 6 Barb. Sup. Ct. R. 147.) In Alabama it has been held that a demand must be made before suit is brought in order to .put the vendor in default. (Smith v. Robinson, 11 Alabama, 840.) In Indiana the earlier doctrine was to the effect that no demand was necessary; but the cases establishing that rule were afterward expressly overruled; and ever since that time it has been held that the vendee must demand his deed in order to put the vendor in default. (Streets v. Andrews, 2 Blackford, 274.) In our own State, the question does not seem to have been directly decided, but the necessity for a demand appears to have been assumed by Mr. Justice Heydenfeldt in Goodale v. West, 5 Cal. 339.)
Thus, the general rule appears to be to the effect that the vendee must demand his deed before he can maintain an action at law for a breach of the covenant to convey. And we are inclined to the opinion that this rule does not rest upon precedent and authority only, but finds a more enduring foundation in sound reason and policy. The interests which the vendee acquires under these contracts is a descendible and assignable estate, and may pass through the hands of many persons before the payment of the purchase money, or
The obligation imposed upon the vendor also descends to his heirs, and attaching itself to the legal title, walks by its side pari passu wherever it wanders. And the heirs or assigns of the vendor ought not, in justness and fairness, to receive the first, suggestion touching their liability through the process of the law. But independent of these considerations, there -is no good reason why the vendor should not be afforded an opportunity to perform without being first subjected to the costs and annoyances of a lawsuit. Nor is any hardship imposed upon the vendee, or his heirs or assigns, by requiring them to give the vendor an opportunity to respond voluntarily to their claim before a resort is had to the compulsory powers of a Court. The rule but exacts the performance of a duty ; morally due from man to man, and it is to be regretted that the law has not made it applicable to all cases. Were the plaintiff required to apply to his adversary for redress, as a condition precedent to his right to be heard in the Courts, there would be far less litigation, and the good order of society would be less disturbed by judicial contentions. But the power to establish a uniform rule upon this subject has long since passed from the Courts, and the evil, if any exists, can find no remedy except in legislative interposition.
This general rule, however, has its exceptions. The chief office of a request is to perfect the breach and put the vendor in default, and this result may follow from other causes and circumstances as well as from a refusal to comply with an express demand. As, for instance, if the vendor refuses to receive the purchase money when tendered, thereby repudiating his contract, or by his own act prevents the vendee from performing his part of the agreement, or by any adversary steps makes it known that he does not intend to observe and
Thus it appears there are circumstances which excuse the absence of a demand, and it only remains to determine whether the case of Amador v. Norris comes within the general rule or forms one of the exceptional cases. It appears that under the contract of the 19th of February, 1852, Amador and Norris agreed, among other things, to annul all existing contracts between them and submit all matters in difference to two arbitrators, one of whom was to be selected by each. These arbitrators were to be chosen and to act within a certain time. Each party selected his arbitrator pursuant to the agreement, but they never met. Amador appeared at the time and place appointed, but, as the jury find, Norris revoked the power of his arbitrator before the time of meeting. Amador, in perfect good faith, had dismissed his action against Norris for the recovery of the purchase money for the land and the enforcement of his vendor’s lien. But Norris, when called upon and after due notice, as found by the jury, refused to perform the first act required of him under the agreement, and without any apparent reason retraced the steps which he had taken to that end. This was an act of bad faith on the part of Norris, and was an open violation of the terms of his contract. From his conduct, it was apparent that he did not intend to abide by his covenants, notwithstanding Amador had in good faith performed on his part. By the terms of the contract, Norris was to perform
From all the circumstances, we are of the opinion that no demand was necessary in order to enable Amador to maintain an action, for damages for a breach of the covenant to convey. So far as his right to maintain an action for specific performance is concerned, it seems no demand was necessary except so far as the right to recover costs was involved. In Bruce v. Tilson, 25 N. Y. 197, the Court of Appeals of New York said : “ The distinction between an action for a specific performance in equity and a suit at law for damages for non-performance is this—that in the latter the right of .action grows out of a breach of the contract, and a breach must exist before the commencement of the action, while in the former the contract itself, and not a breach of it, gives the action. A demand .'of performance before suit is brought is only important in reference to the costs of the action, and has no bearing upon the merits or the rights of the parties. But by a demand and refusal the party liable to perform is put in the wrong and in the situation of unreasonably resisting his adversary, and is therefore chargeable with costs. Costs in equity are always in the discretion of the Court, and whether they are granted or withheld, they are but as incidents to and no part of the relief sought. A party getting the relief asked may be compelled to pay costs, but nevertheless his cause of action had' accrued upon the filing of the bill or the commencement of the suit.”
. Thus in every point of view it is apparent that the judg
The conclusion to which we arrived on the plea in bar renders it unnecessary to pass upon the question as to whether the defendants acquired the legal title to the land in question with notice of the plaintiff’s equity.
Judgment reversed and the Court below directed to render a judgment in conformity with this opinion. ' __