Schwerin Estate Realty Co. v. Slye

MELVIN, J.

Plaintiff sued to quiet its title to certain real property in San Mateo County. Defendants answered,, setting up certain contracts of sale upon which they had paid to plaintiff five thousand dollars on account of the purchase price of the land. In the answer it was averred that the consideration for the five thousand dollars wholly failed because plaintiff was not by itself in possession of the land, but that the premises were held by divers persons who had

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growing crops thereon; and because plaintiff had failed to-account for certain, receipts and disbursements as stipulated in the contracts. There was a cross-complaint by which the writings between the parties to the action were set up, and the inability of the vendor to give possession of the land on account of the occupancy and use thereof by other persons was pleaded as well as the failure of plaintiff to account to defendants as provided by the contract. The prayer of the cross-complaint was for five thousand dollars, and the cross-complainants asked that the amount of any judgment which might be given in their behalf should be made a lien on the property. Issue was joined on all of the allegations of the cross-complaint, and in its answer the Schwerin Estate Realty Company denied that it was not in possession of all of the lands involved, denied its inability to deliver possession thereof, and affirmatively averred that on the 20th of February, 1913, which was the last day for the performance of the contract by the vendees, said vendor was and had been ever since and continuously had been up to March 28, 1913, ready, able, and willing to deliver to defendants possession of the whole of the land described in the contracts, if said defendants would keep and perform their part of the agreement. The Schwerin Estate Realty Company also denied the allegation that it had not rendered an account as called for, but, on the contrary, alleged that it had fully kept and performed all of its part of the agreement. After trial of the issues the court gave judgment quieting plaintiff’s title to the property and denying any relief under the cross-complaint. Defendants prosecute their, appeal from the judgment.

It is admitted that defendants neither alleged nor proved their readiness, willingness, and ability at any time to perform their part of the contracts of sale, and respondent insists that such failure is fatal to their cause of action. The original contract between the vendor and Messrs. Slye and Condon called for a completion of the transaction by November 20, 1912. Appellants not having performed the agreement on their part, another contract was executed extending the time, and appellants paid three thousand dollars on the purchase price in addition to the one thousand dollars previously deposited. A further extension was granted on payment of an additional sum of one thousand dollars and an