Opinion
Commissioners’ decision. Department 1. Appeal from superior court, San Joaquin county; Edward I. Jones, Judge.
Action by Luigi Luchetti and another against W. R. Frost and others. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal. Affirmed. COUNSEL
[6 Cal.Unrep. 764] Ansel Smith, Gus R. Grant, and A. H. Carpenter, for appellants.
Nicol, Orr & Nuter, for respondents.
OPINION
SMITH, C.
Appeal from a judgment for the plaintiffs and from an order denying the defendants’ motion for a new trial. The suit was for the specific performance of a contract to the plaintiffs by the defendant Frost for the sale of land. The facts, as alleged in the complaint and found by the court, are as follows: By the terms of the contract, which was executed May 26, 1898, the defendant Frost agreed to sell and the plaintiffs to buy the land in question for the sum of $3,500, to be paid $5 at the time of the contract, which was paid accordingly, and the balance, $3,495, on or before June 2, 1898; Frost agreeing, on payment, to convey free of incumbrances. Time was made of the essence of the agreement. At the time of the contract the land was subject to two mortgages, the principals aggregating $3,170; and to a written option to purchase, given by Frost to one Rhodes, which was to expire June 13, 1898. On the 31st of May, 1898, the plaintiffs offered to pay the amount due upon receiving a deed conveying to them the property free of incumbrances, as provided in the contract; but it is found the [6 Cal.Unrep. 765] defendant then and there neglected and refused to execute such conveyance, and has ever since neglected and refused to do so. Afterwards, on the 2d day of June, 1898, the contract was recorded by the plaintiffs. The following day June 3, 1898) Frost made a conveyance of the land to the defendant Noble, the agent of the defendant Solari, to whom on the same day the land was conveyed, and by whom the land was mortgaged to the defendant Harvey, June 7, 1898, for the sum of $4,000. It is also found (though the fact may be regarded as immaterial) that on the 3d day of June (the day of the deed to Noble) Frost had recorded a written cancellation, or attempted cancellation, of the contract with plaintiffs. The judgment was for a conveyance of the land in question by Solari to the plaintiffs on the payment of the balance of the purchase money, $3,495, free of incumbrances suffered by him or the defendant Frost (the latter, presumably, having been paid), and for the cancellation of the mortgage to Harvey upon the payment thereon of the said sum.
Numerous points are urged for reversal, but they may be reduced, in effect, to the following, viz.: That the contract was in violation of section 533 of the Penal Code, that there was no tender of the purchase money by the plaintiffs, and that the findings of the plaintiff’s offer to perform and the defendants’ refusal were not justified by the evidence. The first point hardly requires consideration. The agreement was for the sale of the land free of incumbrances, among which the option held by Rhodes was recognized as one. It was understood that this was to be settled by Frost, and on the sale to Noble it was in fact settled for $100. With regard to tender, none was necessary until Frost was in condition to convey as provided in the contract. The plaintiffs’ offer, accompanied by the ability and will to perform, and the demand on the defendant Frost for performance on his part, was all that could be done by them at the existing stage of the transaction, and was sufficient. With regard to the sufficiency of the evidence to justify this finding, the most that can be said in favor of appellants’ view is that it was conflicting. But even this can hardly be claimed. The plaintiffs and their witnesses all declare that the offer to perform was made at the interview of May 31, 1898, and that it was accompanied with no conditions, except that incumbrances should be removed. [6 Cal.Unrep. 766] Two of the witnesses for defendants testified that the plaintiffs required the performance of another agreement, relating to certain land that it was thought desirable to have; but the date to which this testimony relates is not fixed, nor can it be inferred that it related to the particular occasion spoken of by plaintiffs’ witnesses. I advise that the judgment and order appealed from be affirmed.
We concur: CHIPMAN, C.; GRAY, C.
PER CURIAM.
For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.