Morgan v. Stearns
Before: Expressed, Sprague, Wallace
Synopsis
Appeal from tbe District Court of tbe Seventeenth District, Los Angeles -County.
Tbe facts are stated in tbe opinion:
First — Tbe contract called for a quit-claim deed, but respondent tendered a grant, bargain and sale deed, for signature of appellant and wife. This was not a demand under tbe contract. A contract to sell land and give a deed does not authorize tbe vendee to demand one executed by tbe wife, even if she has dower. (Ketchum v. Fvertson, 13 J. E. 270. Gazley v. Price, 16 Id. 267 and 12 Id. 443; Hill v. Grigsby, 35 Cal. 661; 11 Wend. 50; 20 J. E. 24.)
The vendor is not put in default until the deed called for in the contract is demanded. (Gray v. Dougherty, 25 Cal. 374; 2 G. Ev. SS. 605.)
Second — Nominal damages only can be given if plaintiff is to recover, as fraud 'is neither alleged nor proved. (Conger v. Weaver, 20 N. Y., 140; Baldiuin v. Mimn, 2 Wed. 400; Peters v. McKenio, 4 Denio, 546; Walker v. Jiorse, 21 Eng. Com. L. 100; 1 Sugden’s Yendors, p. 491 and note 7th Am. Ed. Id. 222 and note; Key v. Key, 3 Tenn. 448; Seems v. Street, 5 Iowa, 352; Dart’s Lendors, 447; Sedgwick’s Damages, 197.)
Third — The refusal to perforin, on the part of the grantor, extended only to the particular conveyance demanded, and the demand for that form rendered it unnecessary and useless to tender any other. It was equivalent to a refusal to perform on the part of the vendee. (Gary v. Smith, 2 Comstock, 60.)-
Fou/rth — After a demand unauthorized by the contract, it required a new tender and demand to put the grantor in default, and he was not bound to prepare and tender a deed. (Carmen v. Pultz, 21 N. Y. 547; Hudson v. Swift, 20 J. E. 25,; Id. 15.)
First — If appellant’s refusal to execute the tendered deed was on the ground of its form, it was incumbent on him to have-so specified. (Carmen v. Pultz, 21 N. Y. 550-51; 7 Barb. 331; 29 Barb. 243 ; 8 Wend. 562.)
Second — There was no obligation on the respondent to tender any deed. When the money was tendered appellant, he should hp,ve tendered in turn a proper deed. (1 Sugden on Yendors, p. 308, n. 1; p. 310, n. 1; Gray v. Go-ay, 25 Cal. 286; Hill v. Grigsby, 35 Id. 656; 2 McLean, 495.)
Third — There was no necessity to either allege or prove fraud. The rule and measure of damages is distinctly defined in Brmkerhqffsr. Phelps, (43 Barb. 473,) and cases there cited.
"Wallace, J"., delivered the opinion "of the Court, Rhodes, C. J., Temple, J., and Ceookett, J., concurring:
This is an action brought upon the following agreement:
“ This agreement, made and entered into the 28th day of December, 1868, between Abel Stearns, of the City and County of Los Angeles, and State of California, the party of the first part, and Edgar M. Morgan, of the same City, County and State, the party of the second part, witnesses; That the said party of the first part, in consideration of the covenants and agreements on the part of the said party of the second part, hereinafter contained, agrees to sell unto the said party of ..the second part all that certain lot, piece or parcel of land situate, lying and being in the said city and county of Los Angeles and State of California, known by the name of the ‘Ogier property and vineyard,’ more particularly described by deeds on record, and bounded on the west by Main street; on the north by J. Huber, Captain Thom. Morgan and Chapman; on the east by Chapman et ál.; on the south by property owned by Catarina Moreno and lane between the property of the heirs of Augustin Machado and the said property herein described, for the sum of $13,000 gold coin of the United States of America; and the said party of the second part, in consideration of the premises, agrees to pay in gold coin of the United States of America, to the said party of the first part, the said sum of $13,000, as follows, to wit: $500 on the execution of these presents by a check on Heilman, Temple & Co., bankers in said city of Los Angeles, and $12,500, gold coin, on or before Monday, the 11th day of January, 1869. In the event of a failure to comply with the terms hereof within the time specified by the party of the second part, the said party of the first part shall be released from all obligation in law or equity to convey said property, and said party of the second part shall forfeit all right thereto, and shall also forfeit his $500 which he has paid on the execution of these presents. And the said party of the first part, on receiving such payment of $13,000, at the ¿time and in the manner above mentioned, agrees to execute and deliver to the said party of the second part, or to his assigns, a good and sufficient quit-claim deed, and give possession of the premises thirty days after the day of the payment of the said $12,500.
[437]“ In witness whereof, the parties to these-presents have hereunto set their hands and seals, the day and year first above written.
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