Doak v. Bruson

Appeal—Order Based on Conflicting Affidavits.—In the consideration of an appeal from an order made upon affidavits, involving the decision of a question of fact, this court is bound by the same rule that controls it where oral testimony is presented for review. If there is any conflict in the affidavits, those in favor of the prevailing party must be taken as true, and the facts stated therein must be considered as established. And as error is not presumed, and all intendments are in favor of the action of the lower court, the affidavits in behalf of the successful party are to be deemed to establish not only the facts directly stated therein, but also all facts which may reasonably be inferred or presumed from the direct and positive statements.

Tender—Written Offer of Performance—Requirements of Valid Tender.—Neither section 2074 of the Code of Civil Procedure, declaring that “An offer in writing to pay a particular sum of money, or to deliver a written instrument or specific personal property, is, if not accepted, equivalent to the actual production and tender of the money, instrument, or property,” nor section 1496 of the Civil Code, making a similar provision with regard to offers of performance in general, absolves a party from the observance of any other requirement of the law necessary to a valid tender. The only effect of these sections, where an offer to pay money is made and not accepted, is to excuse the actual production and tender of the money.

Id.—Tender Must Be in Good Faith with Ability to Perform.—It is essential to a valid tender, under section 1493 of the Civil Code, that it be made in good faith, and to an offer of performance, under section 1495 of that code, that the person making it is able and willing to perform according to the offer. These requirements are not dispensed with by the provisions of section 2074 of the Code of Civil Procedure or of section 1496 of the Civil Code.

Id,—Performance of Concurrent Condition.-—The rule stated in section 1498 of the Civil Code, that one making a tender may make it depend upon the due performance of a concurrent condition, cannot ■ render effective a tender made in bad faith and without the ability to perform, notwithstanding the other party charged with the performance of the concurrent condition was at the time also unprepared to perform.