Latimer v. Capay Valley Land Co.

GRAY, C.

This action was brought to recover moneys laid out and expended in improving a certain piece of land, in pursuance of and as a part of the consideration for a contract by which appellant had agreed to convey said land in fee simple to plaintiff’s assignor on or before a certain date, for an agreed price, which contract, it is alleged, appellant was unable to perform, and failed to perform, on tender to it of the agreed purchase price, such failure arising from the fact that it had not the title in fee simple to the entire tract, and hence could not convey the same to plaintiff. On a trial before the court without a jury the plaintiff had judgment

[288]

for $1,009.91, with interest from November 25, 1895. Defendant appeals from the judgment and from an order denying it a new trial.

1. Appellant’s first contention is, that no tender of the purchase price of the land was shown. It seems- to be conceded that the evidence in the case shows that there was a judgment in a suit brought to quiet title which affected at least a part of the land in question, and that by said judgment the title to said part of the land was declared to be in some one other than appellant. Knowing of this defect in appellant’s title, the evidence shows that respondent, on November 26, 1895, made offer in writing to appellant of the principal sum due for the land under the contract, and demanded a deed in fee simple of the property. At the time of the making of the offer the agent who made it had with him in a sack an amount of money equal to the amount named in the written offer. On this offer being made, the agent of appellant requested his clerk to count the money, and as a performance of the contract on appellant’s part tendered to the agent making the offer a deed of the premises, executed by it, but made no tender of any deed conveying the title to that portion of the premises affected by the judgment in the suit to quiet title. No objection was made at the time of the offer on the ground that it was insufficient in amount, or on any other ground, and consequently the objection made on this appeal, that the offer and tender was insufficient in amount, was waived, and must be now disregarded. (Civ. Code, sec. 1501; Code Civ. Proc., sec. 2076;

Kofoed

v.