Mercer v. Frank Meline Co.

CRAIL, J.

After rescinding an agreement to purchase real property for alleged failure of consideration, plaintiff brought this action for rescission and to recover the moneys paid by her under the contract. The appeal is from a judgment decreeing rescission and for the return of the money paid.

From the facts found by the trial court we summarize the following: In April, 1930, the parties hereto entered into an agreement for the sale by the defendant and the purchase by the plaintiff of a lot in a subdivision in Ventura County. The said agreement contains the following provision: “The seller agrees within a reasonable time after the purchaser’s compliance with all the terms and conditions hereof, and the surrender of this agreement, to execute and deliver to the purchaser a good and sufficient deed. ...” Plaintiff paid to the defendant all sums agreed to be paid by her under said contract and fully complied with all the terms and conditions thereof on her part to be performed. On the first day of May, 1933, when the final payment was made, and again on or about the first day of July, 1933, and again on or about the

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first day of September, 1933, plaintiff tendered and offered to the defendant to surrender to said defendant her said agreement, and demanded her deed. Defendant did not deliver the deed on any of these occasions and had not done so on the fourteenth day of November, 1933, when the plaintiff elected to rescind said contract and gave notice of rescission to the defendant. The notice contained a statement that the consideration for the contract had wholly failed, an offer to restore everything of value which she had received under said contract and a demand for return of the moneys paid by her. The defendant did not nor did anyone in its behalf at any time tender or deliver to plaintiff any deed. Approximately six months elapsed after full compliance by plaintiff with all the terms and conditions of said contract before she rescinded the same. And -the court held that six months is an unreasonable period of time for plaintiff to wait for performance on the part of defendant. The court also held against defendant’s claim that plaintiff had acquiesced in the delays or that she was willing to have the execution and delivery of said deed deferred until the organization of a bondholders’ committee, as claimed by defendant.