Chadbourne v. Stockton Sav. & Loan Society

TEMPLE, C. This is an appeal by defendant from the judgment and an order refusing a new trial. The case has been here before, and is reported: 88 Cal. 636, 26 Pac. 529. The action is based upon an offer on the part of the defendant to sell certain land, which offer is set out in full in the report of the last appeal. On that appeal it was held that the complaint was defective, and that a demurrer interposed to it should have been sustained, because, it is said, the offer had not been accepted within a reasonable time, nor was there any excuse shown for delay. It is then said: “As there is no allegation in the complaint showing that the agreement of Hart to keep the buildings insured, and to assign to the defendant the policies of insurance, as provided by the terms of said instrument—which was the only consideration of the offer [536]to sell—was ever performed or excused, we advise that the judgment and order be reversed, with directions to the court below to sustain the demurrer.” The judgment was reversed, therefore, partly because it was not averred that Hart had insured the buildings. The point was certainly presented by the demurrer. It now appears in the proof that the buildings were not insured by Hart or anyone else. Respondents say the agreement to insure was not a condition precedent. If it was not, it had no binding force whatever. The writing was merely an offer to sell, and imposed no obligation upon Hart. He simply could not avail himself of the offer unless he complied with the conditions. But, whether right or wrong, since the facts in reference to this matter are precisely as.they appeared to be on the last appeal, the conclusion has become the law of the case. The offer of William Hart was contemporaneous with a demise of the premises, and was attached to the lease. The lease, however, was not to William Hart, nor is it shown in any way that William Hart had any previous relation to the premises, or any interest in the leasehold estate, or control over the tenants. It does not appear, therefore, that he had an insurable interest in the buildings. He must have procured the insurance, if at all, in the name of the defendant. Furthermore, the offer was conditioned that the first year’s rent should be paid by August 16, 1888. Hart was not liable for such payment, so far as appears. This rent was not paid at that time. While it was in default, an execution was sued out at the instance of a creditor of William Hart, and levied upon the land, and the interest of said Hart in the same was sold as real estate.

It is claimed and admitted that defendant, through its president, at the sale under the execution, forbade the sale, and notified those intending to bid that William Hart had no interest in the premises, because the conditions upon which the offer was made had not been complied with. Nevertheless, plaintiff’s grantors bought in the premises, and plaintiffs are not the assignees of William Hart, as to his interest in the offer to sell, unless they acquired such interest through such sale. It is evident that the conditions upon which such offer was made did not transpire, and there would seem to be no doubt that the defendant was thereby relieved of its obligation to keep the offer open. Subsequently, however, to the execu