183 P. 150 | Cal. | 1919
Lead Opinion
This is an action between the same parties as inLemle v. Barry, post, p. 6, [
As we have held in Sacramento No. 2676, when the final payment became due it was essential for the vendors to tender a deed in order to put the vendee in default and to enforce a forfeiture. It is also true that it is necessary for the vendee to tender the purchase money in order to put the vendors in default (Townsend v. Tufts,
It is a matter of some doubt, which is not discussed by the parties, whether the general allegations of the complaint sufficiently allege either a tender or a sufficient excuse for a failure to make a tender. (See Lynn v. Knob Hill Imp. Co.,
Judgment reversed.
Lennon, J., Angellotti, C. J., Lawlor, J., and Melvin, J., concurred.
Concurrence Opinion
I concur in the judgment.
The complaint does not allege that the plaintiff ever tendered to the defendants the one-half of the price that was to *4
be paid upon the execution of the deed. The contract set forth in the complaint shows that the agreement of the defendants to convey the title and that of the plaintiff to pay the first half of the price upon such conveyance were dependent and concurrent covenants. In this respect the case differs fromGlock v. Howard,
It appears from the reference in the opinion of Justice Wilbur to case No. 2676 between the same parties, that the plaintiff is at the same time pursuing two remedies against the defendants, based on the same transaction; one to recover the price paid, upon the theory that there has been a rescission or abandonment, the other to recover damages for the breach of the covenant to convey. In view of this fact, it seems proper *5
to say that the two remedies are inconsistent and that a recovery cannot be allowed in both actions. (McGibbon v.Schmidt,
Olney, J., concurred. *6