Allstead v. Nicol

CHIPMAN, C. Specific performance. Plaintiff and defendant entered into the following written agreement, at San Francisco, on September 14, 1892: “Gustave Allstead and William Meol agree to exchange property as follows: William Meol deeds to G. Allstead five lots in gift map No. 3, viz., 1540, 1547, 1548, 1549, and 1550, in exchange for forty-five acres of land in Anderson, three-quarters of a mile from Anderson R. R. station, Shasta county. G. Allstead guarantees his title to be perfect, or no sale. William Mchol has an abstract ordered, for which G. Allstead pays twenty dollars, if title proved good. If title of William Meol is defective, G. Allstead does not have to pay said twenty dollars. William Meol reserves the right to make title good if it is defective, or annul the exchange. Wm. Meol, in addition to the lots above, gives Allstead, if the trade goes through, Allstead’s promissory note for twenty-five dollars.” The court finds the particular description of the property agreed to be exchanged by the parties, and .that on October 17, 1892, plaintiff made a written tender personally to defendant of a sufficient deed to the property of plaintiff, and a tender of the twenty dollars referred to in the agreement for the abstract, and also his acceptance and approval of defendant’s title to the lots in San Francisco, and in the same paper demanded performance by defendant; that at the time of said tender defendant made no objection to the form of the deed or the title of the land of plaintiff, but defendant refused to carry out the agree[596]ment of September 14th, and refused to accept plaintiff’s deed; that said agreement was fairly entered into by the parties and was just, fair, and reasonable, and that plaintiff’s property was of the value of one thousand dollars and defendant’s property of the value of nine hundred dollars. In his answer defendant alleged that after the execution of the written contract it was agreed that defendant should visit plaintiff’s land for purposes of inspection, and if not satisfied with it said written agreement should not be carried out. The court found this alleged modification not to be true. The court gave judgment for plaintiff, from which and from an order denying defendant’s motion for a new trial this appeal is here.

1. Defendant claims that, as plaintiff guaranteed his title to be perfect or no sale, defendant, by the terms of the contract, “had the right to declare the trade off” when he found the title defective. It appears that the abstract of plaintiff’s title disclosed an unredeemed tax sale for 1891 for the sum of twenty-three dollars and fifty-five cents. On October 6, 1892, plaintiff redeemed from the state, and when on October 17th he tendered his deed to defendant the title was perfect. Defendant testified that he got the abstract on September 20th, and that he told plaintiff he would have to submit it to examination and would also have to go and look at the land. He went to Anderson and returned September 24th, and when plaintiff called to see him he told plaintiff he would not take the land because the title was not good and because the land was not what it was represented to be. The latter of these reasons will be noticed hereafter. As to defendant’s right, by the terms of the contract, “to declare the trade off” when he found a defect in the title, we find no clause in the agreement warranting such claim. Plaintiff gave a guaranty of good title, without which there was to be no sale; but plaintiff had a reasonable time within which to remove any defect which the abstract might reveal. He did this within twelve days after the abstract came into defendant’s hands. The law upon this point is, that even when a time is specified in the contract for its completion and there is nothing special in its objects or in the subject matter, and the delay is sufficiently explained and excused, and the delay had not been in itself prejudicial to the other party be