Redington v. Chase , 34 Cal. 666 ( 1868 )

By the Court, Rhodes, J. :

The defendant cannot complain of the delay in the entry of the judgment, because he could have had it entered upon his own motion at any time after the filing of the findings. The judgment does not specify any time within which the money was to be paid by the plaintiff, or the conveyance executed by the defendant; and we cannot say that the delay in tendering the money, from the entry of the judgment in September to the ensuing month of March, indicated an intention on his part to abandon the fruits of the judgment. A tender, though sufficient to enable a party to maintain an action upon a dependent covenant, condition or agreement, is not equivalent, in every respect, to performance. It does not satisfy or extinguish the obligation. And even when suit is brought upon the dependent covenant, the plaintiff must show continuous readiness to perform after the tender. Ro case, that we are aware of, holds that an offer to comply with the commands of a judgment amounts to a satisfaction. Ror are we aware of any authority for the position assumed by the counsel for appellant, that in an action for specific performance, the plaintiff, after a decree in his favor, will lose the fruits of the litigation by his tardiness in enforcing his rights, unless the delay should be so great as to render the Statute of Limitations available to his adversary. The answer to all complaints from the appellant, on the score of delay, is that he had it in his power at any time to hasten the action of the respondent by tendering a full performance on his oavii part, and if the respondent refused to comply Avith the decree, the Court, on motion, would have ordered him to perform within a specified time, on pain of having the decree set aside.

Order affirmed.