Thorne v. Hammond

46 Cal. 530 | Cal. | 1873

By the Court:

The Court below found the fact to be that Hammond made no tender of the purchase money until April, 1870, and the bill of exceptions, by which the motion for a new trial was supported, does not present the question of the sufficiency of the evidence to support the finding in that respect. It will not do to say that “the plaintiff showed no right of possession of the premises sued for as against the defendant, or at all,” for as a specification this would be of no more applicability to any one than to any other of the series of alleged facts upon which the plaintiff relied to make out his right to possession. The Code, section six hundred and forty-eight, provides that “when the exception is to the verdict or decision upon the grounds of the insufficiency of the evidence to sustain it, the objection must specify the particulars in which such evidence is alleged to be insufficient.” By the terms of the bond set up in the cross-complaint, the purchase money was to have been paid by Hammond on July 23d, 1867, Treat, the vendor, however, as lately as January, 1868, some six months after default in the payment, tendered to Hammond a sufficient deed of conveyance of the premises, and at the same time demanded of him the purchase money—when the defendant “refused to pay the said amount or any part thereof,” and did not make a tender of the purchase money until April, 1870, some two years and six months, after the period of payment named in the bond. In view of this great and unexplained delay, and the unqualified refusal upon the part of Hammond to complete the purchase, we are not aware of any principle of equity which would enable him, when sued for the possession, to set up the contract he had so long neglected and so expressly repudiated, and, thereupon, claim a decree for its specific performance by Treat. It results upon this view that the judgment rendered below must be affirmed here, for the judicial proceedings had in the case of Worden v. Hammond, whether they are to be supported or not, certainly did not transfer the legal title to Hammond, nor create a new equity in his favor.

Judgment and order affirmed.