Storer v. Austin

HENSHAW, J.

Defendant’s demurrer to plaintiffs’ third amended complaint was sustained. Plaintiffs declined to amend, and appeal from the judgment given against them. Plaintiffs, the owners of certain real property, had entered into a contract with defendant, a real-estate -dealer, concerning the sale-of certain lots. Defendant, in consideration of commissions and of a share of the profits that he expected to make by selling these lots for a sum in exc’ess of ten thousand dollars, first “guaranteed” to plaintiffs the sum of twenty-five hundred dollars from a sale of an undivided one-fourth

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part of the lots; second, agreed “that if any of the forty-one lots should remain unsold or undisposed of on the first day of January, A. D. 1894, then the interest shall be computed on said remaining lots, at the rate of eight per cent annually, from the twenty-eighth day of September, 1891, to said date; also the interest on all taxes paid on said unsold lots, and all other payments made on them, from their respective dates, at eight per cent annually; one-fourth part of this amount shall be paid over by the party of the first part [defendant] to the party of the second part [plaintiffs], as well as' one-fourth part of all the taxes and expenses that have been paid upon said remaining lots.” The original complaint was filed on December 29, 1898. It sought to recover the twenty-five hundred dollars covenanted to be paid. The action was for a breach of this covenant, and for nothing else. But, as the court ruled upon demurrer, it was defectively pleaded. It failed to allege plaintiffs’ continuous ownership in the land and their ability to perform their contract, failed to show a breach, and did not put defendant in default by charging either that he had refused to pay.the twenty-five hundred dollars within a reasonable time, or within a time stipulated by the contract. On April 27, 1898, plaintiffs filed their first amended complaint, by which was sought the same relief, and this being defective, a demurrer was sustained upon June 17, 1898. Thereafter, on August 22, 1898, the plaintiffs filed their second amended complaint, which is the one here under consideration. In this second amended complaint, for the first time, in addition to the original cause of action, plaintiffs allege a breach of the defendant’s obligation to pay the one-fourth part of the interest, taxes, and expenses which had accrued on January 1, 1894, upon the unsold portion of the lots. Amongst other grounds of demurrer urged to this portion of the complaint was, that it was a new cause of action, barred by the provisions of section 337 of the Code of Civil Procedure, and this ground of demurrer was certainly well taken. The breach had occurred, if it occurred at all, upon January 1, 1894, and more than four years had elapsed before action was brought upon it. While the covenants were embraced in one contract, they were entirely separate and distinct, and defendant might be guilty of a breach of one without the breach of the other. The first complaint