Lemle v. Barry

WILBUR, J.

This is an action between the same parties as in

Lemle

v.

Barry, post,

p. 6, [183 Pac. 148]. By stipulation of the parties both cases were submitted at the same time and upon the same briefs. In a written stipulation filed by the parties it is stated that the questions involved in the two eases “are identical.” In the petition for transfer to this court respondents state that this is the same ease as Sac. No.

2676.

The appellant, however, claims that in Sac. No. 2676 “he was entitled to recover from the respondents the payment made by him upon the execution of the agreement of July 3,1912, and in his second action (Sac. No. 2751) to recover damages for

[2]

breach of said contract, ’ ’ basing his contention upon the same principle of law - in both instances. In the transcript on appeal in one case the second amended complaint alone is brought to this court, and in the other the amended complaint. The original complaint is not brought up in the record. It appears, however, from the dates in the two cases that while both complaints are based in large part upon the same facts, that the case now under consideration is a separate and distinct suit in which plaintiff seeks to recover fifty thousand dollars damages for the breach of the written contract, more particularly referred to in the opinion in

Lemle

v.

Barry, supra.

The facts alleged in the two complaints are substantially identical, and, so far as necessary, are set out in the above-mentioned opinion, save that in this action for damages it is alleged not only that the plaintiff has fully performed each and every covenant contained in his said agreement by him to be performed, but that he has at all times been ready, willing, and .able to pay to the vendors the one-half of the full purchase price of said premises, and to deliver the note and mortgage called for by the contract, and that he has been ready to perform each and every covenant and condition of said agreement by him to be performed in the event that the vendors had corrected, removed, or remedied the defects in their title and were able to convey to the plaintiff a fee-simple title. In lieu of the allegations contained in the action to recover the purchase money, to the effect that the plaintiff had demanded a return of the five thousand dollars, it is alleged in this action that the defendants at all times since June 4, 1913, the date of the service of the notice that the contract was terminated, have failed and refused to correct the defect or to convey or to offer to plaintiff a good, sufficient, or merchantable title to said land. As the parties have failed to make any distinction between the two actions or base any claim upon that distinction, it seems unnecessary for us to discuss at any length such differences. It seems to be agreed by the parties that both •decisions should be either affirmed or reversed.