Brown v. Lamb

YORK, J.

The facts involved in this appeal are as follows: On the eighteenth day of January, 1921, plaintiff advanced to the defendants the sum of $1,000, and as evidence of said advancement, and in consideration therefor defendants agreed in writing to give to said plaintiff a one twenty-fifth interest in a certain lease, or return to said plaintiff the total sum of $2,000, either of which obligations were to be performed on or before October 1, 1921. That neither of these obligations have been performed by defendants.

The contract is as follows:

“Los Angeles, Calif., January 18th, 1921.

“In consideration of one thousand dollars ($1,000.00) to us in hand paid, we hereby agree to give to John F. Brown, one twenty-fifth (1/25) interest in lease from P. B. Lehigh for working lime deposits of the Sheepshead Lime Co. in San Bernardino County, Calif., or to return to said John F. Brown, the sum of two thousand dollars ($2,000.00) cash, on or before October 1st, 1921.

“Lee Koeingheim,

“Stacy C. Lamb.”

The complaint asked for what it designates as damages in the sum of $2,000 by reason of the defendants’ failure to perform the terms of the contract and agreement. The answer admits that the plaintiff “advanced” the sum of $1,000 to defendants, and admits the execution of the contract, but denies that plaintiff has been damaged in any amount or at

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all. The answer does not allege any prior tender of a one twenty-fifth interest in the lease held by defendants, but defendants in their answer tender a one twenty-fifth interest in a later lease, which they claim is on the same property, and set forth an affirmative defense wherein they allege that the demand of plaintiff for the payment of $2,000 is in violation of the usury act. They admit the cancellation of the lease mentioned in the contract. If no time was set in the contract for the exact date of performance, the contract, of course, would have to be performed within a reasonable time.

(Brookings L. & B. Co.

v.