Porter v. Stockdale

BURNETT, J.

The action is for specific performance of an agreement fo convey certain placer mining land in Nevada County.

After plaintiff had introduced Ms evidence at the trial a motion for nonsuit was made upon the grounds that the complaint failed to state a cause of action; that the plaintiff was barred by his laches in making tender of payment more than three years and five months after the third payment in his ■contract became due and more than two years and five months after the fourth payment became due; that time was of the essence of the contract, and therefore plaintiff could not recover; that the delay in making his tender constituted laches from the very nature of the land, it being mining property; that plaintiff had failed to prove the value of the land, and that he had not shown that the sum of seven hundred dollars, as set forth and mentioned in the contract sued upon, was and is a fair and adequate considera

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tion and price for the land therein described. The court held that time is an essential feature in contracts relating to the sale and purchase of mining property, and that, since the tender of payments was made long after they became due, the plaintiff was barred by his laches, and, furthermore, that plaintiff had failed to prove an adequate consideration or whether it was fair and equitable. A motion for a new trial was made and denied, and the appeal is from that order and the judgment of nonsuit.

It is to be observed that appellant seems to have been rather indifferent to the view of the trial court as to the adequacy of the consideration, it appearing that in his assignment of his reasons for excepting to the ruling there is no allusion whatever to this ground, although the court had made it very emphatic, stating, “further than that, it seems to me, even if the court should hold against the defendant upon the ground of inexcusable delay and laches, there is no showing before the court which would enable the court to say what is the value of the land, or whether the compensation agreed upon is fair and equitable. ... It is an action in equity and that is one of the essential factors that the compensation is fair and reasonable.” We notice, also, that in the assignments of error there is the same omission, and the opening brief of appellant is entirely silent on the subject. Nevertheless, the question is of vital importance in this state. The statute itself is clear and the decisions applying and enforcing it numerous and conclusive. We may notice a few of these.