Connolly v. Lake County Canning Co.

[769]

KNIGHT, J.

Appellant, as the owner of an undivided one-fifteenth interest in an acre of land in Mendocino County, brought this suit to quiet title thereto, and to require respondents, who were occupying said land, to account for the proceeds derived from its use. Respondents filed a cross-complaint for specific performance, alleging in substance that during the year 1916 respondent Lake County Canning Company entered into possession of said land under a written lease granted by plaintiff and his co-owners, and by the same instrument was given an option to purchase the land at any time prior to April 1, 1919; that the exercise of the option was delayed by the acts of the appellant until April 10, 1919, at which time said Canning Company tendered appellant his share of the purchase price, amounting to $233.19, and demanded a deed; and that appellant refused to accept the money or to execute the deed. The trial court found generally in accordance with the facts alleged in the cross-complaint, and from the judgment entered on said findings this appeal is taken.

Appellant devotes much space in his brief to the citation of authorities holding generally that time is of the essence of an option to purchase, and that it is essential to a judgment in specific performance that a tender of the purchase price be made within the time limit fixed by the option. Section 1511 of the Civil Code provides, however, that the want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay therein, is excused “when such performance or offer is prevented or delayed by the act of the creditor ... ”; and in the present action the trial court found that the delay of ten days in exercising the option was caused by the acts of the appellant; consequently the only question presented for determination on the appeal is whether the evidence reasonably supports such finding.

The facts are as follows: During the year 1910, the Ukiah Canning Company, a corporation, deeded the land in question to some fifteen individuals, one of whom was the appellant. In 1916, a Mr. Poage, acting on behalf of the Lake County Canning Company (which for convenience will be referred to hereinafter as respondent), obtained from said individuals the written lease and option above men

[770]