Warner v. Darrow

De Haven, J. The defendant filed a cross-complaint in the action, in which he asked as affirmative relief that the plaintiff be required to convey to him certain described land. The plaintiff answered. Upon trial of the action, the plaintiff was, upon motion of defendant, nonsuited. The court thereupon proceeded to a trial of the issues made by the cross-complaint and answer thereto, and when the defendant had concluded his evidence in support of his cross-complaint, the court, on motion of plaintiff, granted a nonsuit as to the matters alleged in said cross-complaint. From this judgment the defendant appeals.

1. The appeal in this case was taken more than sixty days after the rendition of the judgment of nonsuit, and the respondent insists that as the determination of the question whether the nonsuit was proper actually depends upon the sufficiency of the evidence to sustain the allegations of the cross-complaint, the appeal was not taken in time. This view finds support in the opinion of Mr. Justice Works in Miller v. Wade, 87 Cal. 410, but was not concurred in by a majority of the court in that case, and it cannot be sustained without overruling previous decisions in which it was uniformly held that the ruling of a court upon a motion for a nonsuit presents a pure question of law, and is properly assigned as such on appeal from the judgment. (Cravens v. Dewey, 13 Cal. 42; Donahue v. Gallavan, 43 Cal. 576; Schroeder v. Schmidt, 74 Cal. 460.) In the latter case this court said: “An error in granting a nonsuit is an error in law, and should be excepted to and specified as such. (Donahue v. Gallavan, 43 Cal. 576; Cravens v. Dewey, 13 Cal. 42.) [312]It cannot be reviewed on the ground that the evidence is insufficient to sustain the decision. This is a ground for the review of questions of fact, not of law.”

We have no doubt of the correctness of these views. A motion for a nonsuit admits the truth of plaintiff’s evidence and every inference of fact which can be properly drawn therefrom, and the question thus presented is as strictly one of law as that which would arise, if, to a complaint .alleging the same facts, a demurrer should be interposed upon the ground that such facts were insufficient to constitute a cause of action.

2. The evidence was sufficient to show that appellant tendered to respondent the balance of the price which, by the terms of the agreement alleged in the cross-complaint, he was to pay for the land. This, in the absence of any proof of the matters set- up as a defense, entitled him to a conveyance. The agreement binds the respondent to make the conveyance “ on or before ” July 1, 1892, provided that the appellant shall, “ on or before that day, have paid to the obligor ” the price named therein. This provision does not render the present action by appellant for a specific performance premature, or justify the respondent in withholding the conveyance after she had been paid or tendered the agreed price for the land.