Townsend v. Tufts
Before: Haynes
Synopsis
Vendor and Purchaser — Action to Recover Purchase-money Paid — Time oe Essence—Pleading — Insufficient Complaint-—Want of Performance by Plaintiff. — A complaint by a purchaser to recover money paid upon a contract for the purchase of laud, which alleges that by the terms of the contract the sum sued for was to be paid down, and • the remainder of the purchase-money was to be paid in installments, and that upon the payment of the last installment the vendor was to execute a deed of the land; that time was made the essence of the contract by express terms; and that at the maturity of the contract the vendors failed and refused to execute a deed; but which does not allege a payment of any deferred installments, or a tender of performance, or an excuse for a failure to make the tender, or any rescission of the contract, — does not state a cause of action.
Id.—Mutual Neglect to Perform—Rescission — First Breach by Purchaser — Tender and Demand of Conveyance.—The mere neglect of both parties to such contract to perform the contract on the day fixed for its performance could not, without anything more, operate as a rescission thereof; and when the complaint shows a first breach of the contract on the part of the purchaser, by failure to pay the first deferred payment a full year before the vendors were required to convey, a full tender on his part of the remainder of the purchase-money due, and a demand for a deed, is essential to a recovery of the purchase-money paid, and it is not enough to allege a refusal of the vendors to make and tender a deed at the date fixed for conveyance.
Haynes, C. Defendants demurred to the complaint, the demurrer was sustained, and the plaintiff having declined to amend, judgment passed for defendants; from which judgment the plaintiff appeals.
The facts alleged in the complaint are, that on March 6, 1888, the defendants entered into a contract with one Parkovitch, whereby they agreed to sell, and said Parkovitch agreed to buy, a certain parcel of land for the sum [259]of two thousand four hundred dollars, of which sum one third was paid down, and the remaining two thirds was agreed to be paid in two equal annual payments, the last of which fell due March 6, 1890; “ at which time,” the complaint alleges, “ by the terms of said agreement, defendants were to execute and deliver to said Parkovitch or his assigns a good and sufficient deed of grant, bargain, and sale, conveying to him or his assigns the title to said land.”
The complaint further alleges that time was made the essence of the contract by express terms; that on March 28,1889, Parkovitch assigned said contract, and all sums of money paid thereon, to the plaintiff, of all which defendants had notice; that at the maturity of the contract defendants failed and refused, and ever since have failed and refused, to convey; that neither plaintiff nor Parkovitch have ever been in possession (the lands being vacant and unoccupied), and that defendants have not paid to plaintiff any part of the eight hundred dollars so received by them.
The complaint contains no allegation of the payment, nor of any tender or offer to pay either of the deferred payments, nor of any demand for a deed of conveyance, nor of any inability to convey, nor of any rescission, mutual or otherwise, of the contract, unless the failure of the defendants to make and tender a deed to the plaintiff on the sixth 'day of March, 1890 (that being the day specified in the contract for the payment of the last installment of the purchase-money and for the conveyance of the land), should be held to operate as a rescission or termination of the contract; and this is the sole ground upon which appellant seeks to reverse the judgment.
The appellant contends that by the failure of defendants to tender a deed on that day the contract ceased to exist, and that thereupon he became entitled to recover back the money paid; and cites Cleary v. Folger, 84 Cal. 316; 18 Am. St. Rep. 187; Drew v. Pedlar, 87 Cal. 443; 22 Am. St. Rep. 257; and White v. Buell, 90 Cal. 177.
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