Johnston v. Mulcahy

HALL, J.

This case has been up on appeal once before, when a new trial was ordered, with leave to plaintiff to amend his complaint.

(Johnston

v.

Mulcahy,

132 Cal. 606, [64 Pac. 1077].)

The case comes before us upon three appeals, to wit, an appeal from the judgment, an appeal from the order denying plaintiff’s motion for a new trial, and an appeal from the order denying plaintiff’s motion to strike out defendant’s cost-bill, which are embodied in one transcript.'

It appears that plaintiff entered into a contract with defendant May 17, 1878, set forth in two writings. In the first plaintiff in terms leased certain real estate of defendant for the period of six years, and agreed to pay therefor a monthly rental of $45.07 in advance on the first day of each month, and also agreed to pay all taxes, water rent, and for all repairs and expenses for street work of every nature, and to keep the property insured for the benefit of the lessor in the sum of $2,000.

In the second writing, executed the same day, it is in terms agreed that if plaintiff shall faithfully comply with the terms of said lease, and shall further pay to the defendant the sum of $1,350 and interest, according to the terms of a promissory note set forth in the agreement, defendant would convey the property to plaintiff. The note bears date May 17, 1878, and calls for the payment to defendant by plaintiff nine years after date of the principal sum of $1,350, with interest at nine per cent per annum from date until paid, and to be compounded semi-annually, if not paid. The second writing repeats the agreement that plaintiff, shall keep the property insured for the benefit of defendant and pay therefor, and shall pay the taxes, water rent, and all repairs, and expenses for street work of every nature, upon said property. Both

[549]

documents bear date May 17, 1878, and are signed by both plaintiff and defendant.

Plaintiff’s action is for a specific performance of the contract of sale, and for an accounting, he claiming that he had paid more money to defendant than required by his agreement. Defendant answered the complaint, denying performance of the contract by plaintiff, and cross-complained, averring nonperformance on the part of plaintiff, and prayed for general relief. Plaintiff answered the cross-complaint.