Dennis v. Strassburger
Before: Garoutte
Synopsis
Vendor and Purchaser—Rescission of Contract of Sale—Defective Title — Recovery of Deposit — Pleading. —In an action to rescind a contract for the purchase of real estate, and to recover money paid as a deposit and part payment, on the ground that the title to the land was defective, in order to entitle the purchaser to recover, he must allege and prove that he has performed all the conditions on his part to be performed, and that the vendor is in default as to the conditions to he performed by him.
Id. — Time Allowed to Perfect Title —Maturity of Cause of Action. — Under a contract for the sale of real estate, providing that fifteen days should be allowed for the examination of title, and if the title should be defective, thirty days would be allowed to perfect it, the purchaser is not entitled to rescind the contract and recover the amount paid as a deposit, on the ground of a defective title, until the expiration of the thirty days.
Id. —Default of Vendor — Tender of Deed — Demand and Tender by Purchaser. — The fact that the purchaser alleged and proved that the vendor, within thirty days after the making of the contract, did not tender the purchaser a deed, does not show a default of the vendor entitling the purchaser to rescind the contract, if the purchaser failed to tender the purchase-money and demand the deed.
Id.—Mutual and Dependent Obligations—Putting in Default.— .The obligations of the parties to an agreement for the sale of land are mutual and dependent, where o íe is to convey and the other, at the same time, to pay the purchase price, and neither can put the other'in default except by tendering a performance on his part, unless the other party waives the tender, or by his conduct renders it unnecessary.
Id.—Memorandum of Contract — Signature of Vendor — Statute op Frauds. — A written memorandum of a contract, whereby a vendor agrees to sell to a purchaser real estate for a specified sum, which sufficiently describes the property, need only be signed by the vendor, to render it valid and binding as against him.
Garoutte, action is brought to recover eight hundred dollars as a deposit and part payment of out[586]side lands, block 986, in the city and county of San Francisco, under a contract, in writing, set forth in the complaint, as follows:—
“ I. Strassburger & Co.,
“Deal Estate Agents, 326£ Montgomery Street, Safe Deposit Building.
“ San Francisco, August 22, 1887.
“ Received of S. W. Dennis eight hundred dollars as a deposit and in part payment of the following property, being situate in the city and county of San Francisco, and state of California, and more particularly described as follows, to wit: O. L. Block 986, sold to him this day for the sum of eight thousand dollars, U. S. gold coin, fifteen days allowed for examination of title and completion of purchase; i. e., seventy-two hundred dollars is to be paid upon the tender of a good and sufficient deed, conveying the title; if title is defective, thirty days are allowed to perfect the same, and if after the expiration of said term, unless extended by mutual consent, the title shall not have been perfect, the deposit is to be returned on demand.
“If the sale is not consummated according to the foregoing conditions, the deposit is to be forfeited, and become the property of the undersigned.
“Time is the essence of this contract.
[Signed] “I. Strassburger.”
The complaint further alleges that the title was defective; that no deed was tendered within thirty days after the making of the agreement, or at any time, and the time was not extended by mutual consent; that plaintiff has done and performed all the conditions and terms of the contract on his part to be done and performed; and that defendant has refused to return to plaintiff said deposit of eight hundred dollars, although demanded so to do, upon September 22, 1887. Defendant, by his answer, admits the making of the contract; denies that the title is defective; admits that he never [587]tendered a deed, and that the time was not extended by mutual consent; denies that plaintiff has done and performed all the conditions and terms of the contract set forth in the said complaint on his part to be done and performed; admits that he refused to deliver the amount paid to plaintiff upon demand.
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