No. 6,331 | Cal. | Jul 1, 1880
This is an action upon an instrument in writing, of which the following is a copy:
“ [449.00.] Martinez, November 24th, 1866.
“ For value received, I promise to pay to S. Wolf, or order, four hundred and forty-nine dollars with interest at one per cent, per month from date until paid, principal and interest payable in United States gold coin. This note is made with the express understanding that if the coal mines in the Marsh Ranch yield no profits to me, then this note is not to be paid, and the obligation herein expressed shall be null and void.
“ (Signed) C. P. Marsh.”
It appears by the pleadings, evidence, and findings, that at date of this instrument, and thereafter until the 1st day of November, 1871, the defendant was the owner of the one undivided half of said ranch, and that the coal mines which it
Upon the point that the action was barred by the Statute of Limitations, it is sufficient to remark, that we are unable to discover any ground upon which that point can be sustained; and if we arc right in the view which we take of the other point, it must be apparent that the statute did not commence running more than four years before the commencement of this action. The instrument sued upon consists of two parts: a promissory note, and a condition upon which it was not to be paid, but to be null and void. That condition was, that the coal mines in the Marsh Eanch should yield no profits to the defendant. ' If they at any time should yield profits to him, the note would then become due and payable. From that time the Statute of Limitations would commence to run, because at that time a cause of action would accrue upon the note. Prior to the 1st day of November, 1871, the date of defendant’s conveyance to Williams, the mines had yielded no profits to defendant, and if he had re
fl/"’ Before the mines had yielded any profits to the defendant, he Isold and conveyed his interest in them to a stranger. By so doing he voluntarily put it out of his power ever to realize any profits from the mines. However great the yield of profits from them might be after that, they could yield none to him. And the ¡principle is elementary, that “ if one voluntarily puts it out of his power to do what he has agreed, he breaks his contract, and Jis immediately liable to be sued therefor, without demand, even though the time specified for performance has not expired.” (Bishop on Cont. § 690.)
That this case is within that principle, we do not entertain a doubt. When the note was executed, the defendant was a half J owner of the mines, which were leased on such terms that the ! production of coal from them must have yielded him a profit. | After making the note, he voluntarily committed an act which ¡made it impossible for the contingency upon, which the note ¡would become due and payable ever to ' arise. When he did ¡that, he violated his contract, and the note at once became due and payable; and as this action was commenced within four years after that, it follows that the judgment and order of the Court appealed from must be affirmed.
Thornton, P. J., and Myrick, J., concurred.