Aikman v. Sanborn

Citations

• 5 Cal. Unrep. 961
• 52 P. 729
• 1898 Cal. LEXIS 1047

Syllabus

<p>Vendor and Vendee—Rescission.—The Fact That a Vendor of land fails to perform his contract, or puts it out of his power to perform, it, does not amount to a rescission, but is only ground for rescission by the purchaser.</p> <p>Vendor and Vendee—Rescission.—Even if a Vendor of land by his own act has put it out of his power to comply with the contract, or has been guilty of such a breach of it that he could not enforce it, the purchaser cannot rescind, if he was first in default.1</p> <p>Vendor and Vendee.—In an Action for Money Paid by PlaintifE on a contract for the purchase of land, a recovery can be had only against the person to whom it was paid, and not against a third person, who took a conveyance of the land, and assumed his grantor’s contract with plaintiff, as such action is based, not on the contract of purchase, but on the proposition that the contract has been rescinded, and that the vendor has money paid to him without consideration.</p> <p>Vendor and Vendee.—The Vendor Does not Rescind the Contract by Insisting that the purchaser, by failing to make payment as he agreed to in his covenant, forfeited all payments made and his rights under the contraet.1</p> <p>Liquidated Damages for Breach of Contract to Convey.—Under Civil Code, sections 3387, 3389, which provide that a contract otherwise proper may be specifically enforced, though a penalty is imposed, or the damages are liquidated for its breach, as it is presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation, the parties may agree to stipulated damages in contracts for the purchase of land.2</p>