28 P. 229 | Cal. | 1891
This action was brought to recover $4,000 and interest, against the administrator of the estate of N. R. Vail, deceased, by L. J. Rose. A judgment was obtained, payable in due course of administration, from which and an order denying a new trial this appeal is taken. The cause of action, as stated in the complaint, grew out of an agreement on the part of the deceased, in his lifetime, to sell and deliver to the plaintiff, within a reasonable time, certain shares of stock, and the certificates thereof, in a mining corporation.- Before the mining corporation was incorporated, or any shares of stock or certificates were issued, the plaintiff paid the sum of $4,000 as the purchase price for one-half of the decedent’s (N. R. Vail’s) share of the stock which he was to have, after the same should be issued. It became impossible for Vail to deliver the shares or certificates therefor, which he had promised to the plaintiff, by reason of the issuance and service of an injunction granted by a court of competent jurisdiction in the state of New York. The plaintiff made a demand in writing some time after he had paid his money, and about the 30th of July, 1883, for the shares of stock and certificates thereof, which he had purchased, and which he had become entitled to receive from Vail. On the 6th of August of that same year, Vail by letter admitted to the plaintiff the former’s inability to comply with his contract and deliver the stock or certificates, and make good the proposed sale to the plaintiff. It is evident that, had the plaintiff elected -so to do, he might, at the last-mentioned date, have rescinded the contract, a reasonable time having been given for its completion, and the consideration therefor having clearly failed.
We perceive no force in the suggestion advanced by the appellant that the complaint states a cause of action based upon any other than a cause of action resting upon the breach of this implied promise just adverted to". When the evidence and findings are examined, even at a glance it is seen that the cause of action declared on was never understood by any of the parties at the trial to be other than what we have here stated. The date when the cause of action became barred was several years before the presentation of the claim to the administrator of Vail, who refused to pay it, and also before the institution of this suit, and before the death of Vail. There are several other points made and argued extensively and exhaustively, but, in the view that must be taken of this matter, we cannot see how they can be of any avail either to discuss or determine. The verbal promises to deliver stock when it could be done do not appear to be sufficient to take the case out of the statute of limitations of two years: Code Civ. Proc., sec. 360. For these reasons, after a very thorough and painstaking examination of the record and authorities cited, we are satisfied that the
We concur: Belcher, C.; Vanclief, C.
For the reasons given in the foregoing opinion the judgment and order are reversed.