65 P. 969 | Cal. | 1901
Appeal from a judgment for the plaintiffs and from an order denying the defendants’ motion form new trial. The suit was for the specific performance of a contract to the plaintiffs by the defendant Frost for the sale of land. The facts, as alleged in the complaint and found by the court, are as follows: By the terms of the contract, which was executed May 26, 1898, the defendant Frost agreed to sell and the plaintiffs to buy the land in question for the sum of $3,500, to be paid $5 at the time of the contract, which was paid accordingly, and the balance, $3,495, on or before June 2, 1898, Frost agreeing, on payment, to convey free of encumbrances. Time was made of the essence of the agreement. At the time of the contract the land was subject to two mortgages, the principals aggregating $3,170, and to a written option to purchase, given by Frost to one Rhodes, which was to expire June 13, 1898. On the 31st of May, 1898, the plaintiffs offered to pay the amount due upon receiving a deed conveying to them the property free of encumbrances, as' provided in the contract; but it is found the
Numerous points are urged for reversal, but they may be reduced, in effect, to the following, via.: That the contract was in violation of section 533 of the Penal Code, that there was no tender of the purchase money by the plaintiffs, and that the findings of the plaintiffs’ offer to perform and the defendants’ refusal were not justified by the evidence. The first point hardly requires consideration. The agreement was for the sale of the land free of encumbrances, among which the option held by Rhodes was recognized as one. It was understood that this was to be settled by Frost, and on the sale to Noble it was in fact settled for $100. With regard to tender, none was necessary until Frost was in condition to convey as provided in the contract. The plaintiffs’ offer, accompanied by the ability and will to perform, and the demand on the defendant Frost for performance on his part, was all that could be done by them at the existing stage of the transaction, and was sufficient. With regard to the sufficiency of the evidence to justify this finding, the most that can be said in favor of appellants’ view is that it was conflicting. But even this can hardly be claimed. The plaintiffs and their witnesses all declare that the offer to perform was made at the interview of May 31, 1898, and that it was accompanied with no conditions, except that encumbrances should be re
We concur: Chipman, C.; Gray, C.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.