Benson v. Shotwell

Citations

• 103 Cal. 163
• 37 P. 147
• 1894 Cal. LEXIS 742

Syllabus

<p>Appeal—Law of Case—Identical Facts on Second Appeal.—Where the facts appearing upon a second appeal are the same as those upon a former appeal, the legal effect of the facts'is determined by the decision on the former appeal, which is the law of the case, for the second appeal.</p> <p>Id,—Questions of Fact Not Concluded.—The rule of the law of the case has no application to questions of fact, and nothing said in the opinion on a former appeal as to the facts can bind the trial court upon a second trial or be conclusive upon a second appeal.</p> <p>Vendor and Purchaser—Examination of Title—Refusal of Vendor to Exhibit and Record Deed.—Where the purchaser requested the vendor to exhibit his deed, and to allow it to be recorded, and the vendor called with the deed in his hand, but did not open or exhibit it, and stated that he considered the original better than a record of it, and would give it to the purchaser on delivery of the property, whereupon he took it away, and did not record it, such action of the vendor was, in substance, a refusal to submit the deed for examination, or to allow a record to be made of it.</p> <p>Id.—Tender and Demand by Purchaser—Failure of Vendor to Deliver Possession.—Where the purchaser, at the maturity of the contract of purchase, tendered the purchase money, and demanded compliance with the contract by the vendor, if the vendor does not tender or give to the purchaser the actual and present possession of the land described in the contract upon such-tender and demand, the purchaser is released from the contract, and a subsequent tender of possession would be unavailing.</p> <p>Id.—Waiver of Possession—Acts Between Vendor and Parties in Possession—Knowledge of Purchaser.—Evidence of subsequent transactions between the vendor and third persons in possession of the premises, which are not shown to have been known to the purchaser, or to have been acted upon by him, is not sufficient to show any waiver by the purchaser of the delivery of