Buena Vista Fruit & Vineyard Co. v. Tuohy

Citations

• 107 Cal. 243
• 40 P. 386
• 1895 Cal. LEXIS 741

Syllabus

<p>Equity—Maxim—Pleading.—A plaintiff seeking equity must do equity, and a complaint in equity which does not offer to do equity is demurrable.</p> <p>Id.—Action to Annul Judgment of Foreclosure—Cancellation of Mortgages—Fraud — Restitution of Property.—A corporation which has received a conveyance of property pursuant to an agreement of purchase made by promoters of the corporation, and which has paid a portion of the purchase money upon account, and given notes and mortgages as security for the residue of the purchase price, cannot maintain an action to have a judgment of foreclosure of the mortgages, and also the notes and mortgages, set aside, annulled, and canceled, on the ground of alleged fraud in their procurement, while retaining the conveyance to it of the property, and not paying or offering to pay the value of the property which it has received.</p> <p>Id.—Rescission—Restitution Essential. —A plaintiff cannot attempt to rescind so much of a contract as militates against the interest of the plaintiff, while claiming the benefit of that portion of it in his favor; but he who would rescind a contract must put the other person in as good a situation as he was before, otherwise he cannot do it.</p> <p>Id.—Remedy of Party Defrauded—Election.—A party defrauded may rescind and restore within a reasonable time all the value which he has received under the contract, or he may affirm it and sue for damages.</p> <p>Id.—Presumption—Complaint—Statement of Facts.—Every complaint in an action must be founded upon a theory under which the plaintiff is entitled to recover, and must state all the facts essential to support such theory, and, failing to do so, it is radically defective, and does not state facts sufficient to constitute ■- cause of action.</p> <p>Id.—Complaint por Rescission—Averment of Restitution.—A complaint to rescind notes and mortgages upon the ground of fraud in their procurement must state facts showing that the plaintiff has performed or offered to p