PLUMMER, J., Concurring.
I concur in all that is said in the foregoing opinion and in the judgment therein ordered, but wish to state that in my opinion the provisions 'of section 3275 of the Civil Code are particularly applicable to this case, and would necessitate an affirmance of the judgment of the trial court, irrespective of other reasons advanced for affirmance. The section of the Civil Code referred to provides, so far as applicable here, as follows: “Whenever, by the terms of an obligation, a party thereto incurs a forfeiture or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom upon making full compensation to the other party.” The facts of this case show that the remainder of the section has no present application.
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It is true that the prayer of the amended complaint does not specifically ask for relief under section 3275 of the Civil Code, but it does contain a demand “for such other and further relief as to the court may seem proper.” By section 580 of the Code of Civil Procedure the trial court is empowered to grant to the plaintiff any relief consistent with the case made by the complaint and embraced within the issues whenever an answer to the complaint is filed and the cause goes to trial.
This court, in the case of
Goldsmith
v.
Board of Education,
63 Cal. App. 141 [218 Pac. 296, 297], has held as follows: “It is true that in the prayer of the complaint, as we have seen, the payment of salary is not specifically mentioned, but where issue is joined, relief embraced within the pleading may Ije granted, although the complaint omits the prayer altogether.” (Citing sec. 580, Code Civ. Proc.;
Johnson
v.
Polhemus,
99 Cal. 240 [33 Pac. 908];
Hoffman
v.
Pacific Const. Co.,
37 Cal. App. 125 [173 Pac. 776].) “Besides, as already noticed, there is a prayer for general relief which would undoubtedly authorize the court to award any remedy within the purview of the pleadings.”
In the case of
Leak
v.
Colburn,
55 Cal. App. 784 [204 Pac. 249, 251], this court, without reference to the case from which we have just quoted, having before it a question of forfeiture, used the following language: ‘1 That facts may be shown which would justify a court in relieving a vendefe from a forfeiture even where time is of the essence of the contract, is not doubted, but the facts of this case are not such as to require the trial court to grant such relief in the absence of any request therefor, or any suggestion that tlie vendee is either able or willing to make payment of t"he amount due.” *
When the case of
Goldsmith
v.
Board of Education,
and the case of
Leak
v.
Colburn
are read together, I think there is in fact no conflict but both cases mean that if the complaint states facts sufficient to show the party to whom relief is granted under section 3275 of the Civil Code, it is not material if the prayer of the complaint does not ask for such specific relief. In the case of
Leak
v.
Colburn
it will be noticed that there is no suggestion that the party seeking relief was able or willing to comply with the obligations of the contract, to wit, to make payment of the amount
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due. If these facts had been set forth, showing a willingness to make payment, and that a tender of the amount due had been made, a different case would have been presented.
The facts of this case as set forth in the main opinion, show that the plaintiff, within a very short time after the alleged forfeiture had been incurred, tendered to the plaintiff everything due upon the contract. The plaintiff likewise, in his amended complaint, set forth that he was willing and ready to pay everything due upon the contract, including all costs, etc. We have thus a specific case where the party claiming the benefit of an alleged forfeiture, who has been offered everything to which he would have been entitled had there been no alleged forfeiture, is insisting upon the forfeiture, and by insisting upon the forfeiture stands to gain several hundred dollars at the expense of the opposite party. Such circumstances necessarily appeal to the conscience of a trial court.
This court, in the case of
Fickbohm
v.
Knaust,
103 Cal. App. 443 [284 Pac. 692], having before it a case properly involving the application of section 3275 of the Civil Code, held as follows (quoting from the syllabus): “A purchaser under contract of sale of realty, having sought information regarding total amount required to fully pay vendor’s equity in land, and being only in default in payment of two installments at most, and having tendered full compensation for all deferred payments and interest, held not guilty of gross negligence.” And further held such party entitled to be relieved from forfeiture under said section.
In the case of
Estabrook
v.
Sonstelie et ux.,
86 Mont. 435 [184 Pac. 147], the Supreme Court of Montana had before it a case where the plaintiff was seeking to recover payments made on a contract under a code provision similar to section 3275 of the Civil Code, and from the language used in that case it would appear that a more liberal application is made as to parties entitled to relief under such code provision, to wit, that a purchaser may recover installments that have been paid, etc. Be that as it may, so far as the instant case is concerned, it supports the judgment of the trial court. Section 8658 of the Revised Codes of Montana 1921, provides: “Whenever, by the terms of an obligation, a party thereto incurs a forfeiture or a loss in the nature of a forfeiture, by reason of his failure to comply with its
[48]
provisions, he may be relieved therefrom upon making full compensation to the other party, except in ease of a grossly negligent, wilful or fraudulent breach of duty.” As stated in the case of
Estabrook
v.
Sonstelie, supra,
this section has been applied in the cases of
Cook-Reynolds Co.
v.
Chipman,
47 Mont. 289, 133 Pac. 694;
Clifton
v.
Willson,
47 Mont. 305 [132 Pac. 424];
Fratt
v.
Daniels-Jones Co.,
47 Mont. 487 [133 Pac. 700];
Donlan
v.
Arnold,
48 Mont. 416 [138 Pac. 775];
Suburban Homes Co.
v.
North,
50 Mont. 108 [Ann. Cas. 1917C, 81, 145 Pac. 2];
Fontaine
v.
Lyng,
61 Mont. 590 [202 Pac. 1112];
Ellinghouse
v.
Hansen Packing Co.,
66 Mont. 444 [213 Pac. 1087];
Edwards
v.
Muri,
73 Mont. 339 [237 Pac. 209];
Friederichsen
v.
Cobb,
84 Mont. 238 [275 Pac. 267].
In the case of
Friedrichsen
v.
Cobb, supra,
practically all of the cases which we have cited are taken up and considered, and the facts necessary to be alleged and proven, in order to entitle a purchaser to relief under the sections which we have quoted, are set forth
in extenso.
A summary of them shows that to entitle a purchaser to relief under a contract similar to the one involved in this action, the plaintiff must show that he is ready and willing to make full compensation, that is, to pay all the money due under the contract, and that if there is no gross negligence or wilful, or fraudulent breach of the contract, relief will be granted, and while in a number of the cases cited, relief was not granted by reason of the facts stated not being deemed sufficient, the cases cited would support the judgment entered in this case if based solely upon the provisions of section 3275 of the Civil Code.
The appellant was offered every dollar to which he was entitled under the contract. The offer appears to have been made within a very short time after the alleged forfeiture. The acceptance of the amount due would have placed both parties in the position contemplated by the contract. Equity demands that much, and is satisfied with nothing less. For these additional reasons I concur in the judgment.
Finch, P. J., concurred.