Weil v. Jones
53 Cal. 46
Cal.
1878
Check Treatment
By the Court':

The decision of this case depends upon the construction of a portion of one of the agreements annexed to the complaint, which reads as follows :

“ If default shall be made in any of the above payments * * * for the space of ninety days after the same shall become due, then it shall be lawful for the party of the first part * * * at his option and discretion, at once to rescind this agreement to convey, and to reenter upon and repossess said premises, * * and in such case all payments theretofore made shall be retained by the party of the first part as compensation and liquidated damages for the previous use, enjoyment, and occupation of the premises by the party of the second part.”

The effect of a rescission would have been to restore the status quo ; the party of the first part would have been entitled to the possession of the premises, the party of the second part to a restoration of the moneys he had paid.

It is apparent that the words “ to rescind ” are not employed in their usual or proper sense, because they are followed by a statement that the party of the first part shall retain the moneys paid. In its legal effect, the stipulation is for the benefit of the party of the second part. If the stipulation were not in the agreement, the plaintiff would succeed to the right to reenter immediately on the failure of the second party to make a payment—subject, of course, to the right of the party of the second part to a specific performance, no inexcusable delay occurring. This right to specific performance might continue after the expiration of the period named, the only effect of the stipulation in respect to that matter being that it constituted an agreement that time should not he considered of the essence of the contract during the ninety days.

A provision that a party may at the end of ninety days after an event employ powers which, except for the provision, he could employ immediately on the happening of the event, means nothing unless it means that he shall not employ them during the ninety days.

*48The present action was commenced less than ninety days after the default of defendant J ones. The plaintiff has obtained a decree restoring him to the possession of the land, and forfeit-, ing to him the payments already made by the said defendant. Both these are consequences which the agreement provides shall only follow a failure to pay for ninety days after a payment shall become due.

Judgment reversed.