Boudreay v. Ibbetson

FRICKE, J.,

pro tem.

The complaint alleges that on or about November 11, 1923, the assignor of plaintiffs, one J. Kertis, entered into an agreement with the defendant for the purchase of certain real property, a copy of which agreement is attached to and made a part of the complaint as an exhibit, and that defendant was paid thereunder the total of $2,500 as follows: $100 on November 11, 1923; l$900 on December 13, 1923; $500 on December 2, 1924; $500 on May 14, 1925, and $500 on June 4, 1925, the first two payments by J. Kertis and the others by the plaintiffs. The complaint further alleges that on or about April 15, 1926, and on or about August 10, 1926, “plaintiffs tendered to defendant the entire balance due to the defendant under the terms of said agreement” and demanded a conveyance of said property, but that defendant refused to accept the tender and refused to execute a conveyance. The complaint asks for judgment in the amount of money paid, $2,500, with interest.

Appellant contends that the complaint fails to state ,a cause of action and that the court erred in overruling an objection to the introduction of evidence made upon that ground. The contention that the complaint nowhere alleges performance by plaintiffs of their part of the contract is without merit, the contract requiring of plaintiffs only certain payments and the complaint alleging the payment of certain sums and a tender of “the entire balance due under the terms of said agreement”. The quoted allegation also

[723]

meets appellant's contention that there is no allegation of compliance by plaintiffs with the requirement of the contract that they pay taxes and assessments nor any allegation excusing such compliance.

Appellant contends that it appears from the complaint that the payments made by respondents’ predecessor were not made as called for by the terms of the agreement. The provision of the agreement requires payments from the purchaser as follows: “One Hundred Dollars upon the execution and delivery of this agreement receipt of which is hereby acknowledged, and the further sum of Nine Hundred Dollars on or before the 11th day of December, 1923, and Two Thousand Nine Hundred Ninety Dollars in one, two and three years, with interest at the rate of seven per cent per annum, payable quarterly from date. Taxes for the second half of the current years 1923-1924 to be paid by buyer. Buyer agrees to pay all assessments levied subsequent to date hereof." Appellant presents no argument on this point and does not indicate the deficiency sought to be attacked. If the point is based upon the fact that the sum of $900 to be paid on or before December 11, 1923, was not paid until December 13, 1923, it is answered by the fact that the payment of that amount accepted by appellant, followed by the payment and acceptance of further sums under the agreement, precludes appellant from thereafter urging the delay of two days in the making of this payment.