Ingalls v. Eyraud
Before: Conrey
Synopsis
Action on Check—Evidence—Prima Facie Case.—In an action on a cheek given as a deposit on account of the purchase price of real property which the plaintiff sold to the defendant, the introduction of the check in evidence and proof of its nonpayment makes a prima facie case for plaintiff, easting on defendant the burden of establishing his affirmative defense of failure of consideration.
Id.—Vendor and Purchaser—Deposit Check—Failure of Consideration.—Where in such an action it is shown that the plaintiff’s title to the real property which he had contracted to convey to the defendant was admittedly imperfect on the only date when he made any offer to convey, and where, after such time, and before the commencement of the action, he conveyed to a third person whatever interest he had in the property, the consideration for defendant’s deposit check failed and plaintiff could not recover thereon, regardless of the fact that the conveyance to the third person was not made until after the expiration of the period for perfecting the title.
CONREY, P. J.
The plaintiff appeals from the judgment and from an order denying his motion for a new trial. The complaint states a cause of action on a check made by the defendant to the plaintiff on the twenty-sixth day of March, 1913, for the sum of five hundred dollars. Thereafter the defendant notified the bank to refuse payment on the cheek and payment was refused.
The cheek was given as a deposit on account o"f the purchase price of real property in the city of Bakersfield which the plaintiff sold to the defendant. The contract of sale bears the same date as the check, and was made “subject to administration of the John E. Bailey Estate.” The terms of sale were stated as follows: “Two days are allowed to examine title and consummate sale, at the termination of said time the balance of said purchase money is due, and payable upon tender of the deed of the property sold. If title is defective, thirty days are allowed to perfect the' same, and if after the expiration of said term (unless extended by mutual consent) the title is incurably defective, then the deposit is to be returned. If the sale is not consummated in accordance with the foregoing conditions, the deposit is to be forfeited. Time is of the Essence of this Contract, without recourse.” The contract was signed by “H. A. Ingalls, Agent,” and by the defendant.
It is admitted that at that time the estate of John E. Bailey, deceased, was in process of administration, and that at the time of his death the title to the real property described in the contract was vested in John E. Bailey. The transcript shows that the decree of distribution in that estate was received in evidence, but the contents of the decree are not definitely shown in the record. The defendant’s attorney offered in evidence a document which he described as “the decree of distribution decreeing the property in question here to Matthew Bailey in the estate of John E. Bailey, deceased, on the second day of May, 1913. ” Although the record before us does not in direct terms establish the fact, we might infer from the course of the testimony and from the argument con-
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tamed in the briefs that the decree of distribution contained the necessary words of distribution to Matthew Bailey of the property described in the contract. For the purposes of the argument, let it be assumed that this was the fact.
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