Opinion
Department One
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of Fresno County. J. R. Webb, Judge.
COUNSEL:
The vendor, by his deliberate and wrongful act, put it out of his power to convey, and caused a failure of consideration which entitled the vendee to declare a rescission. (Civ. Code, sec. 1689, subd. 2; Phelps v. Brown , 95 Cal. 572; Anthony Main's case, 5 Coke, 21; Merrill v. Merrill , 95 Cal. 335; Easton v. Montgomery , 90 Cal. 307; 25 Am. St. Rep. 123; Burks v. Davies , 85 Cal. 110; 20 Am. St. Rep. 213; Sanders v. Lansing , 70 Cal. 429; Dowd v. Clarke , 54 Cal. 48; Wolf v. Marsh , 54 Cal. 228; Marshall v. Caldwell , 41 Cal. 614; Lawrence v. Taylor, 5 Hill, 115; Judson v. Wass, 11 Johns. 525; 6 Am. Dec. 392; Delamater v. Miller, 1 Cow. 75; 13 Am. Dec. 512; Heard v. Bowers, 23 Pick. 455; Newcomb v. Brackett , 16 Mass. 161; Buttrick v. Holden, 8 Cush. 233; Burwell v. Jackson , 9 N.Y. 535; Harrington v. Higgins, 17 Wend. 378; Hawley v. Keeler , 53 N.Y. 115; James v. Burchell , 82 N.Y. 109.) Where a party bound to do a thing on a certain day incapacitates himself to do that thing on that day, an action may be commenced at once without waiting for the day. (2 Parsons on Contracts, 666, 678; 3 Am. & Eng. Ency. of Law, 907.)
James Gallagher, and W. D. Grady, for Appellant.
Frank H. Short, for Respondent.
The mere conveyance of the land was not a breach, and the purchaser cannot consider the contract as abandoned and recover money paid. (Joyce v. Shafer , 97 Cal. 335; Shively v. Semi-Tropic Land and Water Co ., 99 Cal. 259.)
JUDGES: Van Fleet, J. Harrison, J., and Garoutte, J., concurred.
OPINION
VAN FLEET, Judge
A general demurrer was sustained to the complaint, and plaintiff electing not to amend, judgment was entered dismissing his action from which he appeals.
The action was to recover back the first installment paid under an executory contract for the sale of land, and damages for the breach of said contract by defendant. The material averments of the complaint are that plaintiff and defendant, on the ninth day of November, 1891, entered into a contract whereby, in consideration of the payment by plaintiff of two hundred dollars down and four hundred dollars to be paid in one and two years thereafter, with interest, defendant sold and agreed to convey to plaintiff a certain lot in the town of Fresno. That at the time of the execution of the contract defendant was the owner of the title in fee of the lot to be conveyed, but thereafter, on the twenty-fifth day of January, 1892, and before the date at which said contract was to be performed, defendant, without the knowledge and against the will and consent of the plaintiff, conveyed the said lot by grant to a third party; and did thereby, as it is alleged, "place without and beyond his, the said defendant's, power the fulfillment and performance of the covenants, conditions and agreements on his part to be observed and performed," by reason of which plaintiff "elects to rescind said agreement."
The only question, of course, is whether the complaint states a cause of action, and this question depends upon the further one whether the facts pleaded show a breach of the alleged contract of sale by defendant. The sole ground relied upon as constituting such breach is the conveyance of the lot by the defendant to a third party pending his contract with the plaintiff to convey to the latter, the plaintiff's contention being that the defendant, by conveying away his title, put it absolutely without his power to fulfill his contract with plaintiff, and thereby gave plaintiff an immediate right of action for rescission.
There is no question but that, where a party having contracted to do a thing upon a given day, before the day of performance arrives repudiates his contract, or voluntarily puts it out of his power to perform, the other party to the contract may treat it as rescinded, and bring his action for the breach immediately and without awaiting the stipulated day. But the question here is, whether the mere fact that defendant conveyed the lot under the circumstances alleged had the effect to put it without his power to perform at the future date agreed upon, since it is not alleged that defendant has repudiated his contract or refused to carry it out, unless the fact of conveying the lot to another is the legal equivalent of such repudiation. In Joyce v. Shafer , 97 Cal. 335, a case of precisely the same character as the present, it was held that the conveyance by the vendor of the land contracted for to a third party before the time for performance of the contract of sale is not a breach of that contract, and does not entitle the purchaser to treat the contract as abandoned or rescinded before the time of performance arrives. "One may sell land," say the court in that case, "which he does not own, and yet be able when the time of performance arrives to furnish a good title. In the mean time the purchaser would not be at liberty to disaffirm the contract on the ground that then the vendor was unable to make a good title. It would be incumbent upon him to offer to perform, or to show that at the time of performance the vendor could not furnish the title." And in Shively v. Semi-Tropic Land and Water Co ., 99 Cal. 259, another action of like character and purpose, it is said: "Rescission or abandonment of the contract by defendant gives plaintiff his cause of action, but a transfer of the land to third parties of itself does not constitute such abandonment or rescission. It does not necessarily follow from such transfer that defendant has placed it out of his power to comply with the terms of the contract. Such transfer creates no breach of the contract. Non constat, but plaintiff's rights were expressly reserved by its terms. Defendant, as yet, has not defaulted, and might not suffer default when the balance of the purchase price was tendered and a deed demanded; and the plaintiff is not entitled to recover the money paid until he shows the default of the defendant. This question was directly presented in Joyce v. Shafer, supra, and it was there held that a conveyance by the vendor was not a breach of the contract, and a demurrer was sustained to the complaint for that reason. We are entirely satisfied with the principle laid down in that case."
The facts alleged in the case at bar make a case not distinguishable in principle from the foregoing. It is true that in this case the plaintiff alleges that the act of the defendant in conveying the lot put it absolutely out of his power to perform his contract, but that is a mere legal conclusion [41 P. 858] drawn from the antecedent facts, and in no way strengthens or adds to the facts upon which it is predicated, and which we have seen do not warrant such conclusion.
Nor does the fact that in both Joyce v. Shafer, supra, and in Shively v. Semi-Tropic Land and Water Co., supra, the plaintiff himself was in default in his payments for the land essentially distinguish those cases from the one at bar as to the point here involved. Although the plaintiff here is not himself in default he cannot recover unless he shows a state of facts putting the defendant in default, and this the facts alleged do not do. Plaintiff treated the defendant's conveyance as a rescission of the contract, and brought his action at once without waiting for the day of performance provided, whereas, in order to put defendant in the wrong, it was incumbent upon him to await the time of performance provided in his contract, and thereupon make his tender of performance and demand his deed. We think the demurrer was properly sustained and the judgment is affirmed.