Folgar v. Buckelew ( 1852 )

The opinion of the Court was delivered by

Anderson, Justice.

The complainant in this case alleges that Benjamin B. Buckelew made a contract with George B. Elkins, on the 16th of May, 1851, to sell and convey to him a certain lot of land in the city of San Francisco, and the hull of a certain store ship theron, including tackle, &c.

The condition of this agreement to convey was, that Elkins should pay the sum of $2000 on the 20th of May, 1851, $5,500 on the 1st of June, and to execute two promissory notes, each for the sum of $3,500, payable, respectively, on the 15th and 31st days of June, (1851.) On the 22d day of May, (1851,) Elkins and Buckelew agreed with Folger, that he should become the purchaser of the property in the place of Elkins,- upon the payment of $2000 on that day, as upon the terms of the first agreement, fixing at the time the dates at which the payments should be made.

The second agreement was in the nature of a substitute for the first, and renewed it in the name of Folger, and was signed by all the parties, and was obligatory. Buckelew received the $2000. The day fixed for the payment of the next sum of $5,500, and the execution of other parts of the contract, fell on Sunday. The day preceding that, Folger went to the house of Buckelew to fulfil his part of the contract. The defendant then alleged that he had discovered a ledge of rocks on the land, which made it unfit for the purpose of the plaintiff, who was induced thereby to procure a survey to be made to ascertain the fact. This occupied the day. The survey showed the statement of the defendant to be a mistake. The next day, Sunday, the 1st of June, fixed in the contract for the payment for the $5,500, the plaintiff offered to pay the defendant the money, which he refused to receive. On the 2d of June, he made also a tender of the money, which was likewise refused, because it was not the 1st day of June.

It was also offered to be proved by the plaintiff, that on the 30th of May, the defendant sold the same property for $25,000 to Cunningham, and made a deed therefor. At the trial of this cause, on motion of the counsel for defendant, the Court below refused to permit this testimony to go to the jury, and ordered a nonsuit to be entered against the plaintiff, on the ground, that if the facts were proved, as stated in the record, they would not entitle the plaintiff to recover—and judgment was entered accordingly.

To this the counsel for the plaintiff excepted, and the case was stated at length, as recited, and signed by the judge.

The testimony would have proved compliance with the contract, in good faith on the part of the plaintiff, and premeditated design to evade the contract on the part of the defendant. The law required that the testimony in the case should have been permitted to go to the jury, and no nonsuit ought to have been ordered.

The Court erred in refusing to let, the testimony go to the jury, and in ordering a nonsuit to be entered. This Court, however, will forbear to remark further upon this case, as it is to be re-tried.

Let the non-suit be set aside, and the judgment below reversed, with costs against the defendant Buckelew; and the cause remanded for trial.