Action to reform an agreement by which the defendants Hull and Read agreed to purchase, and plaintiff to sell, two fifths of a piece of land situate in Los Angeles County, containing about seventeen acres, together with eight shares of the capital stock of the Lake Vineyard Land and Water Association, a corporation; and also to foreclose the vendor’s lien upon the property for the unpaid portion of the purchase-money.
It is alleged in the complaint that by mistake in drawing the written memorandum of the agreement the words “ undivided two fifths of” were omitted from the description of the land, so that the memorandum purports to be that of an agreement to sell the whole undivided piece of land, but that the parties to said memorandum intended to insert therein a description of only the undivided two fifths of the piece of land therein described. It is further alleged that by mistake of the draughtsman the description of the land in the written memorandum re
A copy of the written agreement, bearing the date of November 1, 1887, is set out in the complaint, and its execution is admitted.
The price to be paid for the land and water stock was $10,000, in the following installments: $3,333.33 in hand, on the execution of the agreement, wffiic’n was paid accordingly; $3,333.33 on or before May 1, 1888; and $3,333.33 on or before November 1, 1888; interest on deferred payments at ten per cent per annum.
The other terms of the agreement pertinent to the question to be decided are as follows: “In the event of a failure to comply with the terms hereof by the said parties of the second part, the said party of the first part shall be released from all obligations in law or equity to convey said property, and said parties of the second part shall forfeit all right thereto, and shall also forfeit to said first party all right to any and all moneys theretofore paid thereon, time being of the essence of this contract. And the said party of the first part, on receiving such payment, at the time and in the manner above mentioned, agrees to execute and to deliver to the said parties of the second part, or their assigns, a good and sufficient deed conveying the above-described property, and to deliver said water stock.”
The defendants Hull and Read failed and refused to pay the second and third installments, or any part thereof,, up (o the time of the commencement of this action, April, 1889.
The complaint also contains the following: “That on or about February 7, 1889, plaintiff demanded payment. from defendants B. J. Hull and W. D. Read of all the unpaid balance due and owing to plaintiff under and by virtue of the terms of said agreement., to wit, demanded payment from defendants B. J. Hull and W. D. Read thereunder, of the sum of $6,666.66, together with inter
“ 13. That thereupon defendants B. J, Hull and W. D. Bead declined and refused to accept or receive either said deed or said water stock, and declined and refused to pay to plaintiff said $6,666.66, or any part thereof; that thereupon defendants B. J. Hull and W. D. Bead expressly stated that they would not make any further payments under said contracts.”
All the defendants except Hull made default, or disclaimed any interest in the suit.
Hull answered, and also filed a cross-complaint praying for a rescission of the agreement and a judgment against plaintiff for $1,666.66, that being the portion of the purchase-money alleged to have been paid by him.
The court found for the plaintiff on all the issues, and rendered judgment accordingly.
The defendant Hull alone appeals from the judgment, and from an order denying his motion for a new trial.
1. It is contended for appellant that because it does not appear that plaintiff tendered to defendants a deed of the land on the first day of November, 1888, when the third and last installment of the purchase-money became due, she was in default equally with the defendants; that “time being of the essence of the contract,” the deed must have been tendered “ at the time agreed upon, and at no other time ”; and that by the mutual default of
To maintain this position, counsel rely, principally, upon the case of Cleary v. Folger, 84 Cal. 316; but I think the opinion of the commissioners in that case (in which I concurred), in so far as it sustains the point made here by appellant’s counsel, is out of line with the otherwise uninterrupted current of authority in this state. It is not sustained by the cases therein cited. The case of Bohall v. Diller, 41 Cal. 532, therein cited, decides nothing as to the point under consideration here, except that a party who agrees to convey land upon the payment of the purchase-money cannot recover the purchase-money until he tenders a deed, but does not decide that he will be in default unless he tender a deed on the very day the purchase-money becomes due. In Englander v. Rogers, 41 Cal. 420 (also cited), the facts were, that the party agreeing to purchase paid a part of the purchase-money, under an agreement that it should be refunded if upon payment of the balance the vendor should not convey a good title. He sued the vendor to recover back the sum he had paid, without averring that he had tendered payment of the balance of the purchase-money. The court said: “ The covenants of the vendor and vendee were mutual and dependent, and neither could put the other in default, except by tendering a performance on his own part, unless the other party either waived the tender, or by his conduct rendered it unnecessary. To entitle the plaintiff to maintain the action on the contract set out in the complaint, he should have averred a tender of the unpaid portion of the purchase-money, or some sufficient excuse for the omission to tender it.” This neither implies nor warrants the inference that the vendor might not have recovered the unpaid purchase-money after tendering the conveyance of a good title, as was done in the case at bar, but rather the contrary. The report of the case does not show
Undoubtedly, time is of the essence of the contract under consideration, so far as it is expressed or implied that it should be so. It is expressly of the essence of the agreement on the part of the defendants to pay the last two installments of the purchase-money, and as to which they were put in default by the plaintiff’s tender of a deed and demand of payment on the seventh day of February, 1889, three months after the last installment became due; but as to the agreement on the part of the plaintiff to convey the land “on receiving such payment,” there was no default whatever, as there was no tender of payment by the defendants, or either of them. (Hill v. Grigsby, 35 Cal. 656, and cases there cited; Englander v. Rogers, 41 Cal. 421; Bohall v. Diller, 41 Cal. 532.) But the stipulation that time is of the essence of the contract seems to be applicable only to the agreement on the part of the defendants to pay the purchase-money, and to be intended for the benefit of the plaintiff
2. Counsel for appellant contend that the complaint does not state facts sufficient to entitle plaintiff to a reformation of the written memorandum of the agreement, the alleged deficiency being that it is not averred that the mistake complained of was a mutual mistake of the parties, nOr a mistake of one party which the other at the time knew or suspected.
Inasmuch as there was no demurrer to the complaint on any ground, I think it should- be held sufficient to
3. The objection that the findings do not support the judgment is made upon no other ground than those upon which it is claimed that the complaint is insufficient; and since the findings are quite as full and specific as the complaint as to the mutual mistake of the parties, this objection should be overruled.
4. In their reply brief, for the first time, counsel for appellant call attention to a mistake (evidently merely clerical) in the order of sale, by which that order is made at least ambiguous and uncertain as to whether the whole or only two fifths of the piece of land described is to be sold by the sheriff. In the second paragraph of the decree it is ordered “ that the land and premises in the complaint, and hereinafter described,” be sold, etc. This evidently refers to the description in the first paragraph of the complaint, which is the same as that in the revised agreement; but the uncertainty is created by what purports to be a description of the land “directed to be sold,” in the last paragraph of the decree, where it (the land to be sold) is particularly described by metes and boundaries as an entire, piece of land containing 17.42
This error might, and should have been, corrected on motion in the trial court, as the record contains all the data necessary for that purpose. There was no necessity for an appeal to correct it, at least until after a motion for that purpose had been denied by the trial court.
I think the judgment and order should be affirmed in all respects, except that the court below should be directed to correct the description of the land directed to be sold, as indicated in this opinion, on motion of either party, the costs of this appeal to be borne by the appellant.
Foote, C., and Fitzgerald, C., concurred.
— For the reasons given in the foregoing opinion, the judgment and order are affirmed, and the court below is directed to correct the description of the land directed to be sold, indicated in this opinion, on motion of either party, the costs of this appeal to be borne by the appellant.
Hearing in Bank denied.