Caspar Lumber Co. v. Stowell

California Court of Appeal Jan 31, 1940 No. Civ. 11220Published

Before: Nourse

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Holding. The court held that a vendor suing for the full balance of a real estate contract under an acceleration clause must tender a deed to the vendee as a condition precedent to maintaining the action, and the failure to allege such tender renders the complaint demurrable. Furthermore, because the plaintiff failed to request leave to amend the complaint after the demurrer was sustained, the judgment must be affirmed.

Issues

Whether a vendor must tender a deed to the vendee before suing for the full purchase price under an acceleration clause.
Whether a complaint for the balance due on a real estate contract is sufficient without alleging tender of performance.
Whether the trial court erred in sustaining a demurrer without leave to amend when the plaintiff did not request such leave.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Such a demand cannot put the vendee in default without a tender of a deed.”

“the plaintiff should have asked leave to amend the complaint, but not having done so, it may not claim error in the order sustaining the demurrer without leave.”

NOURSE, P. J.

Plaintiff sued to recover the balance due upon a written contract for the sale of real property. The defendant interposed a general and special demurrer, which was sustained without leave to amend. Since the plaintiff did not request leave to amend, the question before us is whether the demurrer to the complaint is good upon any7 ground. This limitation is stated clearly in

Stillwell Hotel Co.

Anderson,

4 Cal. (2d) 463, 464 [50 Pac. (2d) 441], as follows: “The record fails to show that leave to amend was asked and refused between the dates of order and judgment, hence, no error may7 be claimed in that respect; and appellant having declined to amend, must stand upon his pleading as against the demurrer on both its general and special grounds

(Haddad

McDowell,

213 Cal. 690 [3 Pac. (2d) 550])” and in

Swasey

De L’Etanche,

17 Cal. App. (2d) 713, 715 [62 Pac. (2d) 753], where it is said: “Although the order did not state the grounds upon which the demurrer was sustained, the judgment must be affirmed if the demurrer was good upon any ground therein stated.

(Penziner

West American Finance Co.,

133 Cal. App. 578 [24 Pac. (2d) 501].) The record does not disclose that plaintiffs requested leave to amend, nor do they now claim that they made such request. Under such circumstances, if the special demurrer was well taken in any particular, the order sustaining it without leave to amend would not constitute reversible error even if the complaint stated a cause of action.

(Haddad

McDowell,

213 Cal. 690 [3 Pac. (2d) 550] ;

Consolidated R. & P. Co.

Caspar Lumber Co. v. Stowell

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NOURSE, P. J.

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