115 Cal. 136 | Cal. | 1896
The single question involved in this appeal is whether the action is barred by the statute of limitations, and the question arises upon the face of the complaint under the demurrer interposed.
The action, which was commenced September 24, 1894, is to recover back with interest the purchase money paid by plaintiff to defendant under five several contracts of even date for the conveyance of land. Each contract covers a separate parcel or lot of land, and each is counted upon in a separate count. The five counts are identical in averment, excepting only in the description of the lot and price to be paid, and the first will serve as a type of all. Its substance is, that on the twelfth day of December, 1887, plaintiff and defendant entered into a written contract, by the terms of which defendant agreed to sell to plaintiff lot 11, in block 358, of Pacific Beach, for five hundred dollars, with interest on deferred 'payments at ten per cent per annum; payable one hundred and sixty-seven dollars at the date of agreement, one hundred and sixty-six dollars and interest June 12, 1888,- and one hundred and sixty-seven dollars and interest December 12, 1888; and that in consideration of the making of such payments the defendants would execute to plaintiff, upon his demand, a grant deed conveying the land described. That plaintiff made the first two payments as stipulated; that thereafter, on or about October 10, 1888, defendant agreed with plaintiff that in consideration of the payment by the latter on that date, and before the maturity of the third and last payment under the contract, of the sum of one hundred and seventy-one dollars and sixty cents, to accept such sum in full discharge of said third payment, principal and interest, “and in
That thereafter, in September, 1891, plaintiff demanded a deed according to the terms of the contract, which defendant has failed, neglected, and refused to make; and that on the seventh day of October, 1893, plaintiff demanded of defendant the repayment of the amount paid under the contract, and offered to restore to defendant everything of value received thereunder, which offer defendant refused, and that no part of said sum or interest has been repaid.
The position of respondent is that the action is one in the nature of special assumpsit upon a “ contract, obligation, or liability founded upon an instrument in writing, executed in this state,” within section 337 of the Code of Civil Procedure, and could be brought any time within the four years’ limitation therein prescribed after the right accrued.
Appellant’s contention, on the other hand, is that the action is not one founded upon the writing within the last section, but is implied assumpsit upon the defendant’s breach of the written contract to convey, for recovery of the purchase money paid, and is subject to the bar of subdivision 1 of section 339 of said code: which requires the action to be brought within two years.
Is the action upon an obligation founded upon an instrument in writing within the intent of section 337? The language of this section has been construed as having reference to actions to recover upon an obligation or liability created by some express promise or stipulation in the written instrument, and not to actions on such obligations as merely spring from or grow out thereof in some less immediate way. The meaning of the statute was first considered by this court in Chipman
In the recent case of McCarthy v. Mt. Tecarte Land etc. Co., 111 Cal. 328, an action was brought against a corporation by one of its directors for services rendered by him as superintendent, under a resolution of the board of directors, which provided for his appointment, but did not fix any compensation. It was contended that the resolution constituted an instrument in writing, and that the action being upon a liability growing out of and founded thereon was within the four years’ limitation.
“But,” say the court in that case, “a cause of action is not upon a contract founded upon an instrument in.
Applying this construction in the present case, and we are of opinion that the action cannot be said to be founded upon the written contract within the meaning of the statute. There is in this contract no express stipulation or agreement to do the thing which the action seeks to enforce. The contract was to convey the title upon payment of the price, but there is no agreement to repay in default of such conveyance. The action is to recover the money so paid, by reason of a refusal to convey, and is necessarily based upon the implied promise of the grantor that it would so repay the money in default of making title. In Turner v. Reynolds, 81 Cal. 214, cited by respondent, there was an express promise to pay back the money should the title prove bad. Had there been such promise in the present contract, the action would present an instance of an action upon a “contract, obligation or liability, founded upon an instrument in writing.”
Actions of the character of the one at bar have been uniformly treated as actions resting in implied assumpsit, as for money had and received (Joyce v. Shafer, 97 Cal. 335; Shively v. Semi-Tropic Land etc. Co., 99 Cal. 259); and, under the facts alleged, we think this case must be so regarded and as governed by the two years’ limitation prescribed by subdivision 1 of section 339.
Such being the nature of the action, it remains to be determined when the plaintiff’s right accrued.
It was held in Chatfield v. Williams, 85 Cal. 518, that under a contract to convey land, no demand for a deed
But, while the original contract did contain sucRprovision, it is alleged in the complaint that by a subsequent agreement between the parties the plaintiff paid, and defendant received, the sum of one hundred and seventy dollars and sixty cents, “ in full performance by plaintiff of his part of said contract.” It was competent for the parties to thus alter their original agreement, and we think the effect of such modification was to entitle plaintiff to his deed immediately upon payment and receipt of the money so stipulated to be received, without further act or demand on his part. Conceding, therefore, that the contract as originally entered into would not be within the doctrine of Chatfield v. Williams, supra, the plaintiff, under the facts alleged, is in no better situation.
But, moreover, assuming, as contended by respondent, that the modification in question did not obviate the necessity of demand, and we must yet hold the action too late. Where a party’s right to sue depends for its perfection solely upon the necessity of a demand by him to put his adversary in default, he cannot indefinitely and unnecessarily extend the bar of the statute by deferring such demand, but must make it within a reasonable time. (Palmer v. Palmer, 36 Mich. 494; 24 Am. Rep. 610; Hintrager v. Truat, 69 Iowa; 746; Steele
Judgment and order reversed and cause remanded with directions to sustain the demurrer to the complaint.
Garoutte, J., Harrison, J., and McFarland, J., con- - curre d.
Temple, J., dissented.