70 P. 82 | Cal. | 1902
This action was brought to recover moneys laid out and expended in improving a certain piece of land, in pursuance of and as a part of the consideration for a contract by which appellant had agreed to convey said land in fee simple to plaintiff's assignor on or before a certain date, for an agreed price, which contract, it is alleged, appellant was unable to perform, and failed to perform, on tender to it of the agreed purchase price, such failure arising from the fact that it had not the title in fee simple to the entire tract, and hence could not convey the same to plaintiff. On a trial before the court without a jury the plaintiff had judgment *288 for $1,009.91, with interest from November 25, 1895. Defendant appeals from the judgment and from an order denying it a new trial.
1. Appellant's first contention is, that no tender of the purchase price of the land was shown. It seems to be conceded that the evidence in the case shows that there was a judgment in a suit brought to quiet title which affected at least a part of the land in question, and that by said judgment the title to said part of the land was declared to be in some one other than appellant. Knowing of this defect in appellant's title, the evidence shows that respondent, on November 26, 1895, made offer in writing to appellant of the principal sum due for the land under the contract, and demanded a deed in fee simple of the property. At the time of the making of the offer the agent who made it had with him in a sack a amount of money equal to the amount named in the written offer. On this offer being made, the agent of appellant requested his clerk to count the money, and as a performance of the contract on appellant's part tendered to the agent making the offer a deed of the premises, executed by it, but made no tender of any deed conveying the title to that portion of the premises affected by the judgment in the suit to quiet title. No objection was made at the time of the offer on the ground that it was insufficient in amount, or on any other ground, and consequently the objection made on this appeal, that the offer and tender was insufficient in amount, was waived, and must be now disregarded. (Civ. Code, sec.
It is also clear that the respondent was not required to produce the money or permit it to be counted in order to constitute a valid tender, so long as the appellant did not accept the offer. "The thing to be delivered, if any, need not in any case be actually produced, upon an offer of performance unless the offer is accepted." (Civ. Code, sec.
The evidence disclosed no acceptance of the offer upon the part of appellant, but its tender of a deed, as a performance *289
of the condition of the offer as well as of the condition of the contract, which did not convey a title in fee simple to all the land, and which for that reason did not comply with these conditions, must be taken as a refusal to accept the offer as made. Of course, respondent had a right to attach this condition of a conveyance in fee simple to her offer (Civ. Code, sec.
2. Appellant contends that because the judgment affecting the title to the land was entered July 25, 1892, and no attempt was made to rescind until November 26, 1895, a lack of promptness in rescinding is disclosed which ought to defeat the case. The entry of said judgment furnished no ground of rescission, nor did it furnish any ground for treating the contract as broken or abandoned; for, notwithstanding the judgment, appellant might have procured the title evidenced by it and afterwards conveyed said title to respondent. (Shiveley v. Semi-Tropic etc. Co.,
3. The contract of sale was assigned to respondent by the original vendee, by an indorsement thereon duly signed by said vendee, which indorsement was in words and figures following: "James D. Latimer, the within-named purchaser, for and in consideration of love and affection, and also $10 to him in hand paid, do hereby sell, assign, and transfer all his right, title, interest, and claim in and to the within-described lot, block, or parcel of land, and the within contract No. 162, unto Ida L. Latimer, his wife, her heirs and assigns forever, subject to the stipulations and conditions therein contained, which are to be performed by said assignee." Two weeks after the making of this assignment appellant was given notice thereof by letter, and thereafter consented thereto, and, after giving her written notice that an installment of interest was due under the terms of the contract, received said interest from respondent. From the evidence it seems that of the money sought to be recovered in this action only about $420 was expended on the land by respondent after the assignment; the balance was expended thereon by the said assignor before the assignment. It is now contended that respondent should not be permitted to recover anything on account of the money expended by her assignor, but that her recovery should be confined to the amount of money expended by herself. This contention cannot be upheld. The assignment by its terms is broad enough to carry with it all the rights that the assignor might have under the contract by reason of its breach by appellant. One of these rights was to rescind the contract and bring an action for the recovery of the money expended under it, on failure of the consideration therefor, in whole or in part, through the fault of appellant. (Civ. Code, sec.
We advise that the judgment and order appealed from be affirmed.
Cooper, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
Henshaw, J., McFarland, J., Temple, J.
