Green v. Covillaud

Citations

• 10 Cal. 317

Syllabus

<p>The law supposes that every suitor will state his case as strongly as the facts warrant;</p> <p>and hence the rule that a pleading is taken most strongly against the party making it. The case of Brown v. Covillaud, (6 Cal., 568,) which is a case very similar to this, in its main features, disposes of the whole matter of this bill, as it originally stood $ and this Court feels no inclination to disturb that decision.</p> <p>A party seeking the legal enforcement of the stipulation of a concurrent obligation of the other party, must first show a compliance with his own.</p> <p>A Court of Equity will not enforce a specific performance of the agreement to convey lands when the plaintiff shows no compliance or offer of compliance on his part with the agreement, nor any excuse therefor, for the period of twenty-one or twenty-two months from the time he bound himself to perform.</p> <p>While time is not of the essence of the contract for the sale of land, ordinarily, yet in every case it will devolve upon the party seeking the relief to account for his delay, and, if there are circumstances showing culpable negligence on his part, or if the length of time which has been permitted to intervene, together with other circumstances, raise the presumption of an abandonment of the contract, or if the property has greatly enhanced in value in the meantime, and the purchaser has laid by apparently for the purpose of taking advantage of this circumstance, he will not be entitled to a decree in his favor.</p> <p>This rule is especially applicable to such contracts in this State.</p> <p>It is a cardinal rule in equity, as in all other pleading, that the allegata and probata must agree, and that averments material to the case omitted from the pleading can not be supplied by the evidence.</p>