No. 14826 | Cal. | Sep 20, 1892
— Appeal from a judgment in favor of respondents Green and Robinson, upon the judgment roll.
The action was brought against respondents and one J. W. Rupley, to quiet title to eighty acres of mineral land. Each defendant answered separately, and each filed a cross-complaint for specific performance; Rupley to a part thereof containing about twenty acres, under a contract made and recorded in 1871, and the other defendants under a contract of purchase made by defendant Green with the plaintiff July 3,-1890, for the whole of said eighty acres. Robinson’s claim was under this contract, in which he was interested with Green.
Judgment went in favor of Rupley for the part claimed by him, and described as lying “ below the toll-road,” being twenty acres, and in favor of defendants Green and Robinson, upon their cross-complaint, awarding specific performance of the Green contract, for the remaining sixty acres. There was no appeal from the judgment in favor of Rupley.
The contract price of the land was two thousand five hundred dollars, of which Green paid plaintiff one thou
At the date of the contract the quantity of land embraced in the Eupley contract was not known. Plaintiff took no steps to ascertain the quantity, nor did he furnish an abstract, as to which matters the contract was silent. In the latter part of July, 1890, defendant Bobinson had the Eupley tract surveyed, and also procured an abstract of title, on which the Eupley contract appeared.
Soon thereafter, and before August 8th, the attorney informed plaintiff that there were twenty acres in the Eupley lot, and that he had good title to the remaining sixty acres.
Immediately after entering into the contract, defendants went into possession of the land, and made valuable improvements thereon, and also upon adjoining land, with a view to the development of the land in question.
On August 8th, defendants withdrew the deposit of fifteen hundred dollars. Plaintiff never tendered a deed nor offered to convey, nor did defendants tender the remainder of the purchase-money or demand a conveyance. The court further found that defendants were at all times able, ready, and willing to complete the purchase, and that upon the trial they tendered to plaintiff $875, which plaintiff declined, and which defendants afterwards, and before the close of the trial, deposited with the clerk for the plaintiff, and which sum the court found was the balance due on the contract.
On these facts appellant raises two questions: 1. “Was
1. The covenants of the parties were mutual and dependent. Plaintiff never having offered to convey, the defendants were not in default when plaintiff commenced his action to quiet title, which in itself was a repudiation of the contract. A tender of the remainder of the purchase-money, - under such circumstances, would have been a vain thing, which the law does not require.
Counsel contends that the settled law in this state requires a plaintiff to tender performance before bringing suit, and that when a defendant files a cross-complaint he becomes an actor or plaintiff, and must therefore tender performance on his part. The rule is not universal as to either party. In Dowd v. Clarke, 54 Cal. 50, the vendee sought specific performance. The court said:He [the defendant] ignored altogether the right of the plaintiff to purchase, and on well-settled principles this was a waiver of the necessity of a tender before bringing suit.” (See also Barsolou v. Newton, 63 Cal. 226; and Pomeroy on Specific Performance, sec. 361.) These authorities do not in the least conflict with the cases cited by appellant’s counsel, none of which presented facts bringing them within the exception above stated.
2. The withdrawal of the deposit on the 8tli of August, 1890, if a violation of the contract, was not such as to release the plaintiff from performing or offering to perform on his part, nor such as to prevent the defendants from obtaining specific performance against the plaintiff under the facts found by the court.
The plaintiff had received more than half of the purchase-money, and put defendants in possession, and permitted them to make valuable improvements on the land, yet had taken no steps to complete the contract. He was informed, prior to the withdrawal of the money, of the quantity of land claimed by Eupley, and which would
Any lack of exact compliance with the terms of the contract on the part of defendants was sufficiently compensated by allowing costs to the plaintiff, while a refusal to grant defendants their prayer for specific performance against the plaintiff would have caused them irreparable loss.
I advise that the judgment be affirmed.
Belcher, 0., and Vanclief, 0., concurred.
For the reasons given in the foregoing opinion, the judgment is affirmed.
Paterson, J., Garoutte, J., McFarland, J.