Mills v. Garner

California Court of Appeal Sep 13, 1927 No. Docket No. 5937.Published

Before: Warne

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Holding. The court held that the plaintiffs were entitled to quiet title because the defendant was placed in default after the plaintiffs tendered the deed and abstract and demanded payment, which the defendant failed to perform.

Issues

Whether the obligations to pay the balance of the purchase price and to deliver the deed and abstract were dependent and concurrent conditions that precluded the plaintiffs from terminating the contract.
Whether the trial court erred in sustaining objections to questions calling for the witness's conclusions regarding his ability to perform and his understanding of the contract terms.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The contract was terminated by the failure of the defendant to perform after notice.”

“The trial court properly sustained the objections to these questions on the ground that the same called for the conclusions of the witness.”

WARNE, J.,

pro tem.

This is an action to quiet title to certain real property in Inyo County, together with

[400]

certain shares of the capital stock of Bishop Creek Ditch Company, a corporation, and the waters for irrigation of said land represented by said shares and furnished to said land by sáid corporation. Judgment passed for plaintiffs and the defendant appeals from the judgment and the order denying the motion for a new trial.

Under date of March 20, 1922, the parties to this action entered into a written contract for the purchase and sale of said property and defendant paid to plaintiffs the sum of fifteen hundred dollars upon the purchase price. The balance of the purchase price was to be paid on or before January 1, 1924, and the contract further provided:

“The parties of the first part agree that when the second party shall pay or cause to be paid, the balance due, then they will make a good and merchantable deed to second party with an abstract, showing said property free of all debts and incumbrances except such expenses as might arise under the water settlement which is now under negotiation which second party agrees to assume.

“The party of the second part agrees to make the payments as they shall become due and all taxes and interest that shall become due and in ease that he shall fail or refuse to make such payments as they become due, then to forfeit all money paid and improvements made, and said property, and first parties to have immediate possession and ownership in said property restored in full. But if first parties shall receive payment in full the second party shall keep all the covenants and conditions, then said deed to be executed as herein set forth.”

The defendant answered, setting up the contract of sale, and alleged an offer to fully perform according to the terms of the contract on his part, but inability and refusal to perform on the part of the plaintiff. The court, after finding all of the allegations of plaintiffs’ complaint to be true and that defendant’s claim was invalid and groundless, found that plaintiffs had duly performed and fulfilled all and singular the terms and conditions on their part to be performed and to be fulfilled of the contract “ . . . but that defendant has not performed or fulfilled any of the terms or conditions of said contract on his part to be performed and fulfilled and by reason whereof said contract is no longer in force and effect and that the real and personal property

Mills v. Garner

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WARNE, J.,

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