Opinion
Department Two
Appeal from a judgment of the Superior Court of Fresno County, and from an order refusing a new trial.
COUNSEL:
The plaintiff is entitled to recover the purchase-money paid, as the contract was void because not signed by any of the vendees, nor by the vendor, nor by any one lawfully authorized by him in writing to do so. ( Code Civ. Proc., sec. 1973; Civ. Code, sec. 1624; Feeney v. Howard , 79 Cal. 525; 12 Am. St. Rep. 162; Smith v. Taylor , 82 Cal. 546; Scott v. Bush , 26 Mich. 418; 12 Am. Rep. 311.) There can be no ratification of a void contract. ( Civ. Code, sec. 2310; 1 Lawson's Rights, Remedies, and Practice, sec. 31, and note 4.) Authority to agent to "sell" land does not authorize him to sign the principal's name to a contract of sale. (Armstrong v. Lowe , 76 Cal. 616; Duff v. Hobson , 40 Cal. 244; 6 Am. Rep. 617.) If a vendor under a valid contract of sale, time being of the essence thereof, fails to tender the deed at the time the last payment falls due, he thereby makes default, and the vendee may recover the purchase-money. (Cleary v. Folger , 84 Cal. 316; 18 Am. St. Rep. 179; 6 Am. Dec. 392; 7 Am. Dec. 305-317.) Time is of the essence of the contract whenever it appears to have been the intention of the parties that it should be so. (Grey v. Tubbs , 43 Cal. 359; Drew v. Pedlar , 87 Cal. 443; 22 Am. St. Rep. 257.) A contract of forfeiture of money for breach of contract is void. ( Civ. Code, secs. 1670, 1671; Drew v. Pedlar , 87 Cal. 443; 22 Am. St. Rep. 257.) The assignor of a contract of sale of land must also convey the land in order to give an assignee the right to enforce specific performance. (Taylor v. McKinney , 20 Cal. 620; Baum v. Grigsby , 21 Cal. 178.)
George B. Graham, for Appellant.
J. P. Meux, for Respondent.
The failure of the defendant to make a tender of the deed at the time the last payment became due did not preclude him from recovering the balance of the purchase-money. (Smith v. Mohn , 87 Cal. 489; Wilcoxson v. Stitt , 65 Cal. 596; 52 Am. Rep. 310.) The signature by the vendor alone was sufficient. (Cavanaugh v. Casselman , 88 Cal. 543; Scott v. Glenn , 87 Cal. 221; Benson v. Shotwell , 87 Cal. 49; Vassault v. Edwards , 43 Cal. 458; Higgins v. Mann , 83 Cal. 66.) The appeal from the judgment alone has been perfected in this case, the appeal from the order denying a new trial being of no effect because of a failure to give the proper undertaking. (Bornheimer v. Baldwin , 38 Cal. 671; Corcoran v. Desmond , 71 Cal. 100.) This appeal not having been taken within sixty days after the rendition of the judgment, exceptions for insufficiency of the evidence to support it cannot now be considered. ( Code Civ. Proc., sec. 939; Curran v. Kennedy , 89 Cal. 98; Handley v. Figg , 58 Cal. 578.)
JUDGES: Garoutte, J. McFarland, J., and De Haven, J., concurred.
OPINION
GAROUTTE, Judge
This action arises from a contract of sale of real estate, and was commenced to recover the sum of six hundred dollars paid to respondent and one Meux as a partial payment under the terms of the contract, and is based upon an alleged default upon the part of said respondent and Meux to carry out the terms of said contract. Glenn answered the complaint, denying the allegations thereof, and set out a cross-complaint alleging tender of the deed, demand, and refusal of the payment of the balance due, and asked judgment against Scott and his co-vendees under the contract for the balance due, and that the realty be held to satisfy such judgment. The cross-complaint was denied. Meux as a co-vendor assigned his interest to Glenn, and judgment went in favor of defendant upon the main case, and also in his favor upon the cross-complaint, and plaintiff appeals.
His appeal from the order denying his motion for a new trial must be dismissed, as no undertaking was filed therein, and the appeal from the judgment not being taken within sixty days from the rendition thereof, we cannot look into the evidence, but must confine our examination to the pleadings, findings, and judgment.
1. It is insisted that the contract is void as a contract for the sale of real estate because not signed by the vendees. The vendor is the party to be charged, and his signature to the contract, taken in connection with a delivery thereof to the vendee, and a partial payment thereunder, binds both parties. (Vassault v. Edwards , 43 Cal. 458; Dennis v. Strassberger , 89 Cal. 583; Benson v. Shotwell , 87 Cal. 49; Cavanaugh v. Casselman , 88 Cal. 543.)
2. The signature of Meux, the co-vendor, was attached to the contract by Glenn, and appellant claims this was done without authority. The court finds the act of Glenn in this regard was fully ratified in writing by Meux. The evidence is not before us, and the finding concludes the matter against appellant's contention.
3. It is insisted that the vendor is in default because he did not tender the deed at the time the last payment fell due, time being expressly made of the essence of the contract. Except as to the single case of Cleary v. Folger , 84 Cal. 316; 18 Am. St. Rep. 179, which has since been overruled in this respect, the authorities are all opposed to the doctrine upon which appellant now relies. (Wilcoxson v. Stitt , 65 Cal. 596; 52 Am. Rep. 310; Smith v. Mohn , 87 Cal. 489; Newton v. Hull , 90 Cal. 493; Banbury v. Arnold , 91 Cal. 609; Townsend v. Tufts , 95 Cal. 257; Joyce v. Shafer , 32 P. Rep. 320.)
The findings of the court are full upon all the issues raised by the pleadings. They are favorable to defendant, and support the judgment rendered by the trial court.
For the foregoing reasons let the [32 P. 984] judgment be affirmed, and the appeal from the order denying a new trial be dismissed.