Chadbourne v. Stockton Savings & Loan Society , 88 Cal. 636 ( 1891 )

Fitzgerald, C.

Appeal from a judgment of the superior court of San Joaquin County, and from an order refusing a new trial.

This is an action to compel the specific performance of an alleged contract in writing, for the conveyance of land. The so-called contract, which is annexed to the complaint as an exhibit, is made a part thereof, and is in the words and figures following, to wit:—

“ The Stockton Savings and Loan Society, a corporation, does hereby offer to sell to William Hart, or his assigns, all that certain piece or parcel of land situate and being in the county of San Joaquin, state of California, and known as the north half of section thirty-two (32), township four (4) north, range six (6) east, Mount Diablo meridian, for the sum of sixteen thousand six hundred and eighty-eight ($16,688) dollars in gold coin of the United States of America, said sale to be made subject to the foregoing lease.

“ The Stockton Savings and Loan Society agrees to account for all rents received by virtue of the foregoing lease of said premises after this date and prior to August 16,1889, provided this offer is accepted upon said terms.

“ The Stockton Savings and Loan Society agrees to keep this offer open until August 16,1889, provided, however, that the rental for the first year, ending August 16, 1888, shall be paid as specified in foregoing lease, and if not then accepted, this offer shall be withdrawn and considered as of no effect. Time is of the essence of this agreement, and the said William Hart, in consideration of the above offer to sell, agrees to keep the buildings on said land insured for at least six hundred dollars, and will assign to said Stockton Savings and Loan Society the policies of said insurance.

“ Dated August 17, 1887.”

Defendant demurred to the complaint upon the ground, among others, “that it does not state facts sufficient to constitute a cause of action.” The demurrer was overruled by the court below, and upon the case being tried, judgment was rendered in favor of plaintiffs, from which judgment, and the order refusing a new trial, defendant appeals.

The demurrer should have been sustained, — 1. Because the complaint does not show that Hart, or any one claiming under him, ever did anything in pursuance of said instrument, which was but a mere proposal to sell, and of which time was expressly made the essence, except the tender of payment, demand for deed, and offer to perform by plaintiffs, on the fifteenth day of August, 1889, which was within two days of two years after the date of the execution of the said offer to sell, and more than twelve months after said Hart’s alleged interest in said property had been sold at an execution sale by the sheriff of San Joaquin County; 2. Because we deem it essential, in order to entitle plaintiffs to maintain this action, that the complaint should allege performance or offer to perform, or excuse non-performance, within a reasonable time after the making of the said offer to sell.

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 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.

Belcher, C., and Vanclief, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment and order are reversed, with directions to the court below to sustain the demurrer.

Rehearing denied.