Quill v. Jacoby

SEARLS, C. On the thirteenth day of July, 1887, ‘James Quill, the plaintiff and appellant herein, entered into two written contracts with A. Jacoby and L. Thorn, the defendants and respondents, by each of which the plaintiff agreed to purchase, and the defendants to sell and convey, a specified lot in the “Jacoby and Thorn Subdivision,” in the city of Los Angeles. For one lot appellant was to pay $800—$300 down and the remainder in two equal payments of $250 each, at six and twelve months, respectively. For the other lot he was to pay $700 in three equal installments—one at the date of the execution of the contract and the others at six and twelve months, respectively. One of the lots was designated as “Lot 4” and the other as “Lot 3,” both in block L of said tract. The deferred payments were to bear ten per cent interest per annum. The contracts were identical in date and form, except as to description of lots and the amounts of payment. Respondents were to convey the lots to appellant upon payment of the final installment of the purchase price. The contract contained the following further stipulation: That respondents would “construct and build a levee along the west side of said tract, in accordance with the plans and specifications as furnished by the council of the city of Los Angeles, and, if the last payment hereinbefore provided for should grow due before said levee has been accepted by the city as completed, then the last payment above referred to shall be deferred until said levee has been accepted by the proper officers of Los Angeles city, but shall be immediately due and payable on the acceptance of said work by the authorities of the city of Los Angeles. ’ ’ The agreement further provided that completion of the levee at an earlier date should not cause the last payment to become due before the expiration of the year from the date of the agreement as therein specified. Appellant made the payments, except the last, which was postponed until January 6, 1891, by reason of the nonconstruction of the levee, at which last-mentioned date appellant served upon respondents a written offer to relinquish and transfer to them all his interest in the lots under the contract, [738]and demanded a repayment of the money by him paid on account of the contracts, specifying the sums so paid, which being refused, this action was brought to recover the money thus paid, aggregating $1,107 and interest.

Defendants in their original answer admitted the levee was not constructed; averred that a reasonable time for the construction thereof had not elapsed; averred that it was impracticable to construct such levee until its continuation above and along Los Angeles river was built; averred their willingness to construct it as soon as the connections could be made; averred a contract between the city of Los Angeles and a railroad company, by which the latter was engaged in building the whole of the levee in question, including that along the west side of the lots. The answer also denied an offer to rescind, retransfer, etc. By a supplemental answer defendants averred the completion and acceptance of the levee on or before April 11, 1892. The cause was tried by the court without the intervention of a jury, and written findings filed, upon which judgment was entered in favor of the defendants for costs. Plaintiff appeals from the judgment and from an order denying his motion for a new trial.