Naftzger v. Gregg

California Supreme Court Aug 4, 1892 No. Nos. 14,705; 14,704Published

Before: Vanclief

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Holding. The court affirmed the judgment in the first action because the plaintiff failed to plead or prove the tender of a deed required by the contract, but reversed the judgment in the second action, holding that the prior judgment did not bar the second suit because the issue of tender was never litigated or decided in the first action.

Issues

Whether a vendor must tender a deed to put a vendee in default under a contract where covenants are mutual and dependent.
Whether a prior judgment acts as a bar to a subsequent action when the specific issue of tender was not raised or decided in the first proceeding.

Disposition. Affirmed in part; reversed and remanded in part.

Quotations verified verbatim against the opinion

“the covenants of the vendor and vendee were mutual and dependent, and neither could put the other in default, except by tendering a performance in his own part”

“the judgment-roll in the former action furnishes no ground for an implication or presumption that there was any trial or determination as to whether plaintiff tendered a deed.”

Synopsis

Bills and Notes — Pleading.—In an Action on Two Notes the answer admitted the allegations in the complaint, but set out a contract for a deed to defendant from plaintiff, with the averment that the execution of the contract and the making of the notes were parts of the same transaction, and that the contract was the only consideration for the notes, and that no deed had been tendered by plaintiff. Held, that the complaint was defective, and presented no cause of action, in that it did not set out the contract, and allege performance by plaintiff of its conditions.

Bills and Notes—Bes Judicata.—Where a Judgment for Defendant- has been rendered in an action on notes because the complaint did not set out the contract under which the notes were given, and allege performance of its conditions, which performance was necessary for a recovery upon the notes, and where there is no issue tendered in the complaint or answer as to the performance of this condition, this judgment is no bar to an action on the notes and the contract.

VANCLIEF, C. The above-entitled causes between the same parties and relating to the same subject matter will be considered together for convenience, if not of necessity. As No. 14,705 was first tried, it will be first stated. It is an action upon two promissory notes made by the defendants, each for $2,500, dated September 8,1887, one payable one year, and the other two years, after date. It was commenced March 10, [521189]0. The complaint is in two counts in the usual form, and is, on its face, sufficient. The answer of the defendants expressly admits each and every allegation of the complaint, but alleges that there was no consideration for said notes, or either of them, other than a written contract of even date with the notes, whereby the plaintiff agreed to sell and convey to the defendants, and the defendants agreed to buy from plaintiff, a certain lot or parcel of land, and to pay therefor $7,000— $2,000 upon the execution of the contract, $2,500 in one year, and $2,500 in two years, from date of contract; the deferred payments being evidenced by the two notes described in the complaint. A copy of the contract is exhibited as a part of the answer, and contains the following: “In the event of a failure to comply with the terms hereof by the said parties of the second part [defendants] the said party of the first part shall be released from all obligations in law or equity to convey said property, and said parties of the second part shall forfeit all right thereto; and the said party of the first part, on receiving such payments at the time and in the manner above mentioned, agrees to execute and deliver to the parties of the second part, or to their assigns, a good and sufficient deed conveying said land free and clear of all encumbrances made, done or suffered by the said party of the first part; .... and that time is of the essence of this contract.” The answer further alleges that the defendants paid $2,000 at the time the contract was executed, and that “the plaintiff has not executed to the defendants the deed provided for in said contract, or any deed of conveyance of said land, or any part thereof.” The court found as facts the execution of the contract; that defendants paid thereon, at the time it was executed, $2,000; that the notes in suit were given at the same time, as a part of the same transaction; and that “the plaintiff has not executed to the defendants the deed provided for in said contract, or any deed of conveyance of said land, or any part thereof”; and as conclusions of law found “that the plaintiff is not entitled to any relief in this action,” and “that the defendants are entitled to judgment against the plaintiff for their costs”; and rendered judgment accordingly on July 29, 1890. The plaintiff appealed from this judgment on July 9, 1891, upon the judgment-roll, without a bill of exceptions.

Naftzger v. Gregg

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