Green v. Barney

Citations

• 4 Cal. Unrep. 665
• 36 P. 1026
• 1894 Cal. LEXIS 1203

Syllabus

<p>Vendor and Vendee—Rescission by Former.—B., Having Defendant’s contract to sell Mm certain land, died, leaving a balance overdue and unpaid. The contract had not then been rescinded, but defendant made no claim against B.’s estate. Plaintiff, B.’s successor in interest, told defendant that she could not complete the purchase, and suggested a division of the land. Defendant refused, but offered to sell her the land, without counting B.’s payments, for a price considerably more than the balance due on the contract. Plaintiff said she would rather keep to the old contract, but was told there was no old contract to keep to. Later, plaintiff wrote defendant that she was now able and willing to pay the amount due, and requested an account, which was furnished, with a letter from defendant’s attorney to the effect that defendant did not recognize plaintiff’s right to the information. Held, that -defendant had rescinded.</p> <p>Vendor and Vendee—Offer to Pay—Waiver.—Civil Code, section 1496, provides that, unless an offer of performance be accepted, the thing to be delivered need not be actually produced. Section 1501 declares that all objections to the mode of an offer which could be stated at the time to the person making the offer, and could be then obviated by him, are waived unless then stated. Held, that, in ease of an offer to pay money, actual production of it is waived unless demanded at the time.</p> <p>Vendor and Vendee—Rescission by Former.—A Vendor Who, After Receiving money on the contract, rescinds it for the vendee’s breach, has the burden to show, as against the vendee’s claim for return of the money, what damages he has sustained by the breach.</p>