98 Cal. 168 | Cal. | 1893
— This action arises from a contract of sale of real estate, and was commenced to recover the sum of six hundred dollars paid to respondent and one Meux as a partial payment under the terms of the contract, and is based upon an alleged default upon the part of said respondent and Meux to carry out the terms of said contract. Glenn answered the complaint, denying the allegations thereof, and set out a cross-complaint alleging tender of the deed, demand, and refusal of the payment of the balance due, and asked judgment against Scott and his co-vendees under the contract for the balance due, and that the realty be held to satisfy such judgment. The cross-complaint was denied. Meux as a co-vendor assigned his interest to Glenn, and judgment went in favor of defendant upon the main case, and also in his favor upon the cross-complaint, and plaintiff appeals.
His appeal from the order denying his motion for a new trial must be dismissed, as no undertaking was filed therein, and the appeal from the judgment not being taken within sixty days from the rendition thereof, we cannot look into the evidence, but must confine our examination to the pleadings, findings, and judgment.
1. It is insisted that the contract is void as a contract for the sale of real estate because not signed by the vendees. The vendor is the party to be charged, and his signature to the con
2; The signature of Meux, the co-vendor, was attached to the contract by Glenn, and appellant claims this was done without authority. The court finds the act of Glenn in this regard was fully ratified in writing by Meux. The evidence is not before us, and the finding concludes the matter against appellant’s contention.
3. It is insisted that the vendor is in default because he did not tender the deed at the time the last payment fell due, time being expressly made of the essence of the contract. Except as to the single case of Cleary v. Folger, 84 Cal. 316; 18 Am. St. Rep. 179, which has since been overruled in this respect, the authorities are all opposed to the doctrine upon which appellant now relies. (Wilcoxson v. Stitt, 65 Cal. 596; 52 Am. Rep. 310; Smith v. Mohn, 87 Cal. 489; Newton v. Hull, 90 Cal. 493; Banbury v. Arnold, 91 Cal. 609; Townsend v. Tufts, 95 Cal. 257; Joyce v. Shafer, 32 Pac. Rep. 320.)
The findings of the court are full upon all the issues raised by the pleadings. They are" favorable to defendant, and support the judgment rendered by the trial court.
For the foregoing reasons let the judgment be affirmed, and the appeal from the order denying a new trial be dismissed.
McFarland, J., and De Haven, J., concurred.