Cummings v. Wilson

JAGGARD, J.

The plaintiff and respondent commenced this action against defendant and appellant to compel specific performance of a contract to sell land. The court overruled defendant’s demurrer based on the ground that the facts stated in the complaint did not constitute a cause of action.

Of the various points made on this appeal only one is meritorious. The breach of the agreement was alleged in the following terms:

That pursuant to the terms of said agreement the defendant was to deliver to the plaintiff an abstract of title to said premises, and although said abstract has been duly demanded the same has not been delivered.

The contract required that “an abstract of title to said premises shall be furnished said purchaser without delay.” It is to be noted that the complaint did not allege refusal to deliver. The only question, then, presented by the pleading was whether, as a matter of law, the failure to deliver constituted a breach. The complaint was verified on February 33 and was served personally on the 37th. The contract was dated on February 15. On this state of the record all the plaintiff could have proved would have been the facts of demand and nondelivery. If the court could not presume that this delivery was not within a reasonable time, the plaintiff could not have made out a case. We do think that a court could not so presume. The complaint, therefore, failed to allege a breach, and was demurrable.

Order reversed.