Cleary v. Folger

Citations

• 4 Cal. Unrep. 76
• 33 P. 877
• 1893 Cal. LEXIS 1059

Syllabus

<p>Vendor and Vendee—Eescission.—Where the Vendee of Land Notifies the vendor that he cannot and will not complete the purchase, the vendor need not offer to perform, and by failing to do so does not authorize the vendee to consider the contract as rescinded, so that he can recover the payments made by Mm.</p> <p>Appeal—Law of Case.—The Fact That on an Appeal from a judgment of nonsuit the court treats certain facts as established does not make these facts the law of the case, so that defendant cannot on a new trial prove a different state of facts.</p> <p>Nonsuit.—A Judgment Against Plaintiff at the Close of his evidence on the ground that he has not made out his case is a judgment of nonsuit, though part of the evidence introduced by him was a stipulation with defendant which provided that it could be used as evidence by either party.</p> <p>Specific Performance—Damages.—The Withdrawal of Defendant’s Cross-hill for specific performance would not estop him to claim damages under the prayer of his answer.</p> <p>Vendor and Vendee.—Allowing Defendant to Prove Damages because of plaintiff’s failure to complete his purchase is harmless error where he was not allowed to recoup for the reason that plaintiff did not make out his case, and there was therefore nothing against which defendant could recoup.</p>