Civ. No. 5106 | Cal. Ct. App. | Jul 2, 1934
To the fourth amended complaint a demurrer was sustained without leave to amend. The appeal is from the judgment sustaining the demurrer.
The said complaint alleged in substance as follows: That the Golden States Metals Refining Company, Inc., was, on June 15, 1928, a corporation; that said corporation was dissolved by the superior court on or about May 1, 1929, and its assets were distributed to the defendants as trustees: that on June 15, 1928, said corporation and plaintiffs en
That immediately upon receipt of said deed and the discovery of the discrepancy in size of the parcel of land as aforesaid, on or about July 20, 1928, plaintiffs tendered to said corporation a “good and sufficient deed conveying the land so conveyed to these plaintiffs by said corporation, and tendered to the said corporation a conveyance of every right, title or interest or thing received by plaintiffs by reason of the said deed, and by reason of the contract made on the 15th day of June, 1928, and then and there demanded that said corporation return to these plaintiffs the said sum of $11,846.71 paid as the purchase price of the said lands”.
That defendants failed and refused, for more than ten days after service on them of the said demand and offer, to pay to plaintiffs, or either of them, the said sums so paid by plaintiffs, or any part of .same, and still retain said sums, and the whole thereof, and refused, and still refuse to pay said sums.
That the defendants and said corporation have wholly failed to comply with the agreements of said contract of June 15, 1928, on their part to be kept. That the plaintiffs have paid in all some $367.48 for taxes and assessments on said land; that said land is now, and has been, ever since the making of said contract, in the same condition as it was on June 15, 1928, and plaintiffs have neither encumbered said land nor caused or permitted waste thereon; and plaintiffs have been, ever since July 20, 1928, able, ready and willing to restore said land in the same condition as when conveyed to them. That plaintiffs tender any sums
In their brief, respondents rest their attack upon the complaint on several points or grounds, as follows: First: May a court rescind an executed sale of land at the instance of the purchaser upon the grounds of partial failure of consideration ?
The original agreement was to convey a certain parcel of land of a given stated size. This was never done. Immediately upon receipt of their deed, which came to them through an escrow, the purchasers made an immediate objection thereto, and a demand for performance or return of their money. Through the negotiations following, which were had at request and instance of the sellers, purchasers maintained their, same position. They paid certain taxes and assessments for the protection of the property, as they allege. It may not be said that they ever approved the title or accepted the deed, or that the contract of sellers was ever executed on the part of the sellers. This distinguishes this case from those cited by counsel in their brief.
Conceding the application of the rule cited, in a proper case, it is sufficiently clear that this is not such a case. (Craig v. White, 187 Cal. 489" court="Cal." date_filed="1921-12-07" href="https://app.midpage.ai/document/craig-v-white-3310384?utm_source=webapp" opinion_id="3310384">187 Cal. 489 [202 Pac. 648].)
The second point is based upon the premise that the purchasers accepted the deed. Such is not the ease presented by this complaint, and hence, whatever merit there be in the contention that where a deed is ‘accepted, the purchaser may not later complain that it did not comply with the terms of a prior executed agreement, and that the agreement and all prior negotiations are 'merged in the deed, that principle does not apply in this case. The deed being not accepted by the purchasers, they stand upon different ground than that furnished by Bryant v. Swain, 56 Cal. 616" court="Cal." date_filed="1880-07-01" href="https://app.midpage.ai/document/bryan-v-swain-5440022?utm_source=webapp" opinion_id="5440022">56 Cal. 616, Gaffey v. Welk, 46 Cal. App. 385" court="Cal. Ct. App." date_filed="1920-03-01" href="https://app.midpage.ai/document/gaffey-v-welk-3279573?utm_source=webapp" opinion_id="3279573">46 Cal. App. 385 [189 Pac. 300], and other eases cited from other states.
Fourth: Does laches appear upon the face of the complaint? The action to rescind was taken within reasonable time, and delay in this matter was due to negotiations at the instance of vendors, who were endeavoring to procure title to the additional land they thus admit being obligated to convey. This delay cannot be charged to vendees. (Promis v. Duke, 208 Cal. 420" court="Cal." date_filed="1929-10-24" href="https://app.midpage.ai/document/promis-v-duke-3307512?utm_source=webapp" opinion_id="3307512">208 Cal. 420 [281 Pac. 613]; French v. Freeman, 191 Cal. 588 [217 P. 515" court="Cal." date_filed="1923-08-02" href="https://app.midpage.ai/document/french-v-freeman-3298355?utm_source=webapp" opinion_id="3298355">217 Pac. 515].)
Fifth: Have plaintiffs ratified the sale by payment of tases and assessments upon the land after discovery of the alleged failure of consideration?
Purchasers were engaged in negotiations seeking the return of their money or conveyance of the amount of land agreed upon, and these negotiations and all of the delay were had by special request and repeated request of véndors. Payment of taxes that intervened was for the protection of vendors as well as vendees, and to enable vendees to reconvey the land as it was received by them, free and clear from lien or encumbrance. This was not such an act of ownership as evinced an intention to abide by the contract which they were seeking to have performed.
Sixth: Should the fact that three prior demurrers had been sustained, and this demurrer to the fourth amended complaint was sustained without leave to amend, deter the court from disturbing the action of the lower court because no request to amend was made?
The fourth amended complaint was filed and demurrer thereto considered by the court, being now on appeal. This complaint recites that it is filed by stipulation and leave of court. There is nothing in the record presented show
Seventh: The matters presented as matters of uncertainty have no merit warranting a demurrer sustained without leave to amend. The words “goods and sufficient” applied to the deed sufficiently describe it for the purpose of a tender. No objection was made on account of the form of tender. Under such offer the purchasers obligated themselves to make conveyance sufficient to pass their title, whatever it might be, back to the vendors. (Words and Phrases, vol. 4, pp. 3109, 3110.) Tender of every right, title, interest or thing received is a tender of everything received. That should be, and was sufficient. (Fountain v. Semi-Tropic L. & W. Co., 99 Cal. 677" court="Cal." date_filed="1893-10-10" href="https://app.midpage.ai/document/fountain-v-semi-tropic-land--water-co-5446681?utm_source=webapp" opinion_id="5446681">99 Cal. 677 [34 Pac. 497]; Dunger v. Whitney, 92 Cal. App. 216 [267 Pac. 933].)
The judgment is reversed, and the trial court is directed to overrule the defendants’ demurrer to plaintiffs’ fourth amended complaint, with leave to defendants to file an answer within such time as may be deemed reasonable.
A petition by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 30, 1934.