133 P. 491 | Cal. Ct. App. | 1913
There is but one question presented upon this appeal possessing any merit, and that relates to the sufficiency of a finding of the court with reference to an offer of reconveyance before suit. Defendant had agreed in writing that if plaintiff was dissatisfied with the purchase of certain real estate, the title to which defendant had procured a certain corporation known as the Eucalyptus Timber Company to convey to plaintiff, that he (defendant) would return the purchase money, with interest, one year from the date of the contract. Due notification of dissatisfaction was given and found by the court. An issue was presented in the pleadings as to an offer of reconveyance on the part of plaintiff on or before the date fixed for repayment, or at any other date or time. The finding of the court is: "That September 10, 1911, was Sunday, and on September 11, 1911, plaintiff formally demanded of the defendant the payment of said money in accordance with said contract, and tendered to defendant the deed of conveyance and certificate of title received by him from the Eucalyptus Timber Company; that defendant did not object to said tender or the manner thereof, but has neglected to repay the said amount; that plaintiff has tendered in said court said deed and certificate of title." There was no offer in writing found sufficient under section
The judgment is reversed and cause remanded.
James, J., and Shaw, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on June 14, 1913, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 14, 1913.