Opinion
Rehearing (Denied, Granted) 54 Cal. 48 at 50.
Appeal from a judgment for the defendant, and an order denying a new trial, in the Fifteenth District Court, City and County of San Francisco. Dwinelle, J.
A tender was made to the defendant by the plaintiff, of the principal sum due, but not of the interest.
COUNSEL:
Before the commencement of the action, the defendant notified the plaintiff that he was not bound by the contract, and on that ground refused to comply with it. This dispensed with a tender or offer to perform. (Holmes v. Holmes, 12 Barb. 137; S.C. 9 N.Y. 525; North v. Pepper, 21 Wend. 636; Fanchot v. Leach, 5 Cowen, 506; Cornwell v. Haight, 21 N.Y. 465; Crary v. Smith, 2 Id. 60; Bellinger v. Kitts, 6 Barb. 273.) The defendant, having declined the tender and refused to perform, is not entitled to interest from the date of his refusal.
D. M. Delmas, for the Appellant.
Williams & Thornton, for Respondent.
The tender of $ 6,000 Mr. Clarke was not bound to accept, because it fell short of the contract price. Untilthe whole of the purchase-money was paid or tendered, Dowd had no legal or equitable right to demand a conveyance, and Clarke was under no obligation to convey. (Marshall v. Caldwell, 41 Cal. 615.) To entitle a plaintiff to a decree, he must show himself " eager, prompt, ready, and desirous" to perform the whole contract on his part; and until he does so, the defendant is not in default. (Hoen v. Simmons, 1 Cal. 119; Green v. Covillaud, 10 Id. 317; Weber v. Marshall, 19 Id. 447; Barron v. Frink, 30 Id. 486; 3 Leading Cases in Eq. 83; Story's Eq. § 771; Hill v. Grigsby, 35 Cal. 656.)
To constitute a legal tender, having the effect to stop interest, not only must the full amount be duly offered, but the tender must be continuous, and kept good by bringing the money into court. (Perre v. Castro, 14 Cal. 530; Himmelman v. Fitzpatrick, 50 Id. 651; Englander v. Rogers, 41 Id. 135; Hidden v. Jordan, 39 Id. 63; Curiac v. Abadie, 25 Id. 504; Slack v. Price, 1 Bibb, 275; Hamlet v. Talman, 30 Ark. 511; O'Riley v. Suver, 70 Ill. 86; Becker v. Brown, 61 N.Y. 317; 2 Parsons on Cont. (151) n., (152.)
OPINION By the Court, upon rehearing:
The opinion heretofore rendered will remain as the opinion of the court upon the points therein decided, the rehearing having been limited to the question reserved in the opinion--the question of interest.
The defendant is entitled, in our opinion, to interest upon the price to be paid for the land--$ 6,000--from the date of the lease, at the rate of one per cent. per month, the amount of the payments of rent to be deducted from the interest, (Fry on Spec. Perf. sec. 919) and also to interest at the legal rates, upon the several sums that the defendant may have paid for taxes levied upon the land since the date of the lease.
Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.