Tait v. McInnes (1906) · DecisionDepot

Tait v. McInnes

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Feb 24, 1906 No. Civ. No. 138.Published

Before: Harrison

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Holding. The court affirmed the judgment for the plaintiff, holding that the defendant failed to prove he performed the condition precedent of tendering the required lease and bill of sale to the plaintiff.

Issues

Whether the evidence supported the trial court's findings that the defendant failed to tender the necessary documents to consummate the sale.
Whether the defendant's deposit of transfer papers in a bank constituted a valid tender to the plaintiff.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The tender of this lease was a condition precedent to be performed by the defendant in order to establish his right to the $2,000 claimed in his cross-complaint; and it was incumbent on him to show affirmatively that it had been tendered.”

“We have not been cited to any provision of law by which the defendant was authorized to make such deposit of the papers merely because he failed to see the plaintiff personally”

Synopsis

The facts are stated in the opinion of the court.

HARRISON, P. J.

Action for money had and received. Judgment was rendered in favor of the plaintiff, and the defendant has appealed.

The complaint sets forth the plaintiff’s cause of action in two counts: in the first of which he alleges that he paid to the defendant $900 as part payment upon a contract for the purchase of the business of a hotel and its contents in Los Gatos, and that the contract was thereafter mutually rescinded. In the second count he alleges that on August 24, 1903, the de

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fendant received from Mm the sum of $900 to and for his use, and has refused to pay the same upon demand therefor. The defendant denied that the contract of sale had been rescinded, or that he had received any money to the use of the plaintiff. He also filed a cross-complaint against the plaintiff, setting forth the contract referred to in the complaint and the receipt thereon of $900; that the plaintiff agreed to pay the further sum of $2,000 “when a good and sufficient lease of said premises for the term of three years had been obtained from the owner thereof”; that he had secured and tendered said lease to the plaintiff, together with a sufficient bill of sale; and that the plaintiff had refused to accept the same or to pay the $2,000. Wherefore he prayed judgment against the plaintiff for the sum of $2,000 in pursuance of said contract of sale. The cause was tried by the court, and findings of fact were made sustaining the allegations of the second count of the complaint and against the allegations of the cross-complaint. The present appeal is directly from the judgment upon the judgment-roll, with a bill of exceptions setting forth the evidence, and is urged solely upon the ground that the findings of fact are not sustained by the evidence.

As the appellant has failed to point out, in his brief or otherwise, the evidence, or any one of the particulars thereof, wherein it fails to sustain the findings, and has made no reference to the transcript except in two respects, we shall confine our examination to those particulars. (See

Brovelli

Bianchi,

136 Cal. 612, [69 Pac. 416].)

Tait v. McInnes

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Synopsis

HARRISON, P. J.

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