Lucy v. Davis

MELVIN, J.

This is an action for specific performance of a contract to convey certain real property. After plaintiff had introduced certain evidence and had rested his case, the defendant moved for a nonsuit. This motion being denied, defendant introduced no evidence. Judgment was entered in favor of plaintiff. Defendant appeals from said judgment and from the order denying his motion for a new trial.

By a certain agreement in writing one William H. Allen (described as the party of the first part), agreed to sell to one

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Paul Bittner (called the party of the second part) certain real property in Imperial County, for twelve hundred dollars. According to the terms of the agreement part of the purchase price was to be paid to the vendor in installments, the amounts and dates of which are set forth in the contract. These payments, according to the agreement, were to bear interest at the rate of eight per cent per annum from the date of the instrument. The contract also contains this language: “The balance of said $1200.00 to be paid in monthly payments between the 1st and 15th of each month at the rate of $11.50 per month, and to be paid at the First National Bank of Imperial according to agreement with Benters Loan and Trust Company of San Francisco, Cal., and the said party of the second part agrees to pay all state and county taxes or assessments of whatsoever nature which are or may become due on the premises above described.” This agreement was dated May 23, 1905. It was admitted by the pleadings that twelve hundred dollars was a just, fair, and adequate consideration for the land described in the contract of sale. The complaint alleged and the court found that Bittner, by consent of Allen, assigned all his right, title, and interest in the agreement to plaintiff George W. Lucy, and that he delivered to said Lucy peaceable possession of the property in question on January 15, 1907; and that plaintiff had since been in possession thereof. It is also alleged and found that in accordance with the agreement of sale plaintiff made payments to Allen of the amounts and at the times provided in the contract, but before the installment of March 1, 1908, was due plaintiff tendered to Allen the sum of eighty-two dollars to cover said payment with interest, but that Allen, without just cause, refused to accept the money; that a similar tender was made on August 31, 1908, to cover the installment and interest due the following day, but this tender was also refused by Allen; and that from January, 1907, to October, 1908, plaintiff, in accordance with the agreement, paid the Benters Loan and Trust Company the regular monthly payments as provided in the contract of sale, but in the latter month the said company refused to accept further payments, although tender was regularly made. It was further alleged and found that in February, 1908, without plaintiff’s knowledge, Allen sold and transferred to Paul H. Bittner all of his interest in the property, and that the latter,