Green v. Barney

VANCLIEF, C. On January 1, 1886, a written agreement was executed by and between the defendant and E. PI. Bray, whereby the former agreed to sell and the latter to purchase a lot of land (sixty acres) situated in Contra Costa county, at the price of $3,750, of which price $200 were paid on the date of the agreement, and $550 were to be paid January 1, 1887, and the remainder ($3,000) on or before January 1, 1889, deferred installments to bear interest at eight per cent per annum. It was further agreed that time should be of the essence of the contract, and that the $200 paid should be forfeited in the event of Bray's failure to pay the deferred installments according to the agreement. One Blackmar being in possession of the land under a cropping lease, it was further agreed that Bray should have the benefit of the landlord’s share of the crop on the land at date of the agreement, but that the proceeds of the sale thereof should be applied on said deferred installments, and that possession of the land should be given to Bray upon the surrender thereof by Blackmar. Bray died September 14, 1889, having paid only $1,825 on the contract,- but the contract had not been [667]rescinded before his death. The plaintiff, having succeeded to all the rights and interest of Bray in the contract, of which there is no question, brought this action to recover the said sum of $1,825 paid by Bray in his lifetime. The cause having been tried by the court without a jury, and findings of fact having been waived, the judgment of the court was in favor of the defendant, from which, and from an order denying her motion for a new trial, the plaintiff has appealed.

As the appeal from the judgment was not taken within one year from the entry thereof, it should be dismissed. On the appeal from the order denying a new trial, which was properly taken, the appellant contends that material implied findings of fact, on which the judgment necessarily rests, are not justified by the evidence. If the contract had not been rescinded before the commencement of the action, or if, in case it had been rescinded, by reason of a breach thereof by plaintiff, on account of which defendant suffered damages in a sum equal to the amount of the payments made by Bray, then the judgment in favor of defendant was right; otherwise it was wrong, and should be reversed. Therefore, the judgment for defendant implies that the court must have found either that the contract had not been rescinded, or that the rescission thereof was owing to a default of the plaintiff, whereby defendant suffered damages in a sum equal to, and sufficient to cancel, the payments made by Bray: Phelps v. Brown, 95 Cal. 572, 30 Pac. 774, and cases there cited. I think the evidence, without substantial conflict, shows that the contract was abandoned by defendant after the.death of Bray, on account of the default of the plaintiff in failing to pay the remainder of the purchase money; that such abandonment was acquiesced in by plaintiff before the commencement of this action, whereby a rescission of the contract was consummated; and that the evidence does not justify a finding that, by reason of plaintiff’s default, the defendant sustained damages in a sum equal to, and sufficient to cancel, the payments made by Bray, to wit, $1,825.