McManus v. Patch

BURNETT, J.

By a written contract plaintiff agreed to purchase of defendants for the sum of eight hundred dollars a ten-acre tract of land in Modoc County. At the time of the execution of the agreement he paid them four hundred dollars in cash and it was provided in said contract that the entire purchase price with interest thereon at the rate of eight per cent per annum should be paid on or before one year from date and “if the sum' of money herein mentioned, shall be paid according to the agreement herein expressed, and time to be of the essence of this contract, then the said party of the first part agrees to make, execute and deliver unto the said party of the second part and to his heirs, executors and assigns, a good and sufficient warranty deed describing said premises.” The theory of plaintiff, embodied in his complaint, is that, before the expiration of the year, he tendered to defendants the balance due and demanded a deed to the premises but that they refused and neglected to make him a deed to the property ; whereupon plaintiff promptly served upon appellants a written notice that he would not be further bound by the terms of the contract, that he rescinded the same and he demanded of them the return of the four hundred dollars paid by him as a part of the said purchase price, that they refused to return the money but notified him that in due time they would make him a deed. The prayer of the complaint was, therefore, that plaintiff have judgment against the defendants for the said sum of four hundred dollars, with interest and costs. The findings cover all the material issues and they and the judgment were in favor of plaintiff. There is some conflict in the evidence but the testimony of plaintiff, in connection with the admissions of defendants as to the notice of rescission, is abundantly sufficient to legally support the court’s conclusion. We quote a portion of said testimony as follows: “I paid Patch and King four hundred dollars in cash when the contract was entered into, at the date of the contract. This $400.00 nor any part thereof has never been returned to me. Since then I tendered them the balance due on the contract and demanded a deed. This tender was made in Lakeview, Oregon, on May 8, 1911. When I spoke to Mr. King about giving me the deed he said ‘We cannot give you a deed until

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next October. ’ He did not give me any reason why he could not give me a deed. I did not stop to argue with him at all, I just walked out of his place of business. At the time I demanded the deed I had the money in my hand to pay the balance. At the time we made the contract the only information I had of the title to the tract of land was as follows: At the time of signing the contract Patch and King were both present and I said to them ‘You fellows have an abstract and a good title to this land, have you? If you can make me a deed at any time I want it,’ and Mr. Patch answered ‘Yes, sir. ’ At that time I knew nothing about the title to the land, or whether it was encumbered or not or any means of so knowing. This contract was made in Lakeview, Oregon.”