Drew v. Pedlar

Citations

• 87 Cal. 443
• 25 P. 749
• 1891 Cal. LEXIS 1002

Syllabus

<p>Vendor and Purchaser — Contract ce Sale — Forfeiture — Rescission — Recovery of Purchase-money. — Where a contract for the sale of land provided for a forfeiture of all right to a conveyance, and that the purchase-money paid should be as liquidated damages, in case'of non-fulfillment of the terms of future payment by the purchaser, and it appears that full payment of the residue of the purchase-money was tendered and a deed demanded ten months after maturity, and that the vendors refused to accept the tender, or to return the purchase-money paid, and elected to rescind the agreement, the purchaser may maintain an action to recover from the vendors the installment of purchase-money paid.</p> <p>Id.—Action to Recover Purchase-money — Pleading —Election of Vendor to Rescind — Recoupment of Damages—’Judgment on Pleadings. —If in such action the vendors do not deny the allegation of the complaint that they elected to rescind the contract upon the breach thereof by the plaintiff, and do not seek to recoup any actual damages for the breach from the amount of the purchase-money received, or deny any material averments of the complaint, the plaintiff is entitled to judgment on the pleadings for the recovery of the sum paid to the vendors.</p> <p>Id. — Liquidated Damages — Void Stipulation — Construction of Code. — The stipulation in the contract that the purchase-money paid should be taken as liquidated damages for the breach of the contract by the purchaser is void under sections 1670 and 1671 of the Civil Code, it not being impracticable or at all difficult to fix the actual damage to the vendors, the measure of which is definitely fixed by section 3307 of the Civil Code as the excess of the agreed price, if any, over the value of the property to the vendors.</p> <p>Id.—Judgment on Pleadings — Cross-complaint — Cancellation of Contract. — A cross-complaint by the vendors, seeking the cancellation of an unacknowledged and unrecorded contract of sale as a cloud upon their