Walker v. Harbor Business Blocks Co.

LANGDON, P. J.

This is an appeal by the defendant from a judgment against it in an action brought by the plaintiff to recover on his own behalf and as the assignee of his sister-in-law, money paid by them under contracts with the defendant for the purchase of two lots, on the ground that the defendant had breached the contracts, in that it had failed to put in street improvements as agreed within the time specified in the contracts.

This case has 'been before the • supreme court of this state on a prior appeal, and the opinion of that court appears in 181 Cal. 773, [186 Pac. 356], A reading of that opinion, which is the law of this ease, reveals the fact that it covers all matters disclosed by the evidence in the present record. The legal questions involved are discussed by the supreme court from every possible angle, and it would, therefore, be a useless proceeding for us to indulge herein in a similar discussion of the same legal principles.

[1,2]

Upon both appeals, the defendant made the contention that the action was prematurely brought. Upon the former appeal that argument was answered by the supreme court by pointing out that the president of the defendant corporation, on its behalf, had made statements to plaintiff and his assignor which were tantamount to a declaration that the corporation could not, and would not, perform its obligations under the contract within the time prescribed therein, and the well-settled rule was applied that the failure or refusal to perform an obligation assumed expressly or by implicaton, or the voluntary abandonment of a contract, gives the obligee an immediate right of action for the breach and to rescind. To meet this situation, in the second trial of the action, the president of the defendant company testified that he had offered to perform the obligations of the defendant corporation under the contracts, but had stated to plaintiff that to do so would be inadvisable, and that the plaintiff had acquiesced in this. The most that can be said for the defendant as

[303]

a result of this testimony of its president is that a conflict is created in the evidence, which was resolved in favor of plaintiff by the trial court upon this point. For plaintiff testified that the president of defendant corporation had told him, on May 17, 1917, that it would take about three years to do the work required by the contract. The time limited for doing the work expired on June 1, 1917. The defendant had had three and one-half years previous to June 1, 1917, within which to do the work called for by their contracts and the work had not been done, and, indeed, the record shows that up to the time of the trial (May, 1920) the work had not been done.