Hellings v. Heydenfeldt

Citations

• 107 Cal. 577
• 40 P. 1026
• 1895 Cal. LEXIS 794

Syllabus

<p>Contest of Will—Agreement of Compromise—Breach of Executory Contract—Damages.—Where the heirs of a decedent instituted a contest of a will as against the surviving wife, anda compromise was agreed upon under mistake of the wife as to the amount of the estate, after the discovery of which mistake she gave notice of rescission of the agreement of compromise, whereupon the heirs continued the contest, in disregard of the executory agreement and without any bona fide or valid offer or tender of performance of the agreement of compromise on their part, they cannot, in an action upon the agreement of compromise, recover the amount agreed to be paid by the terms of the compromise, but, having broken the contract on their part, and not performed any of their covenants, a judgment against them, in an action for breach of the contract of compromise, will he affirmed, where no damage is alleged or proved to have grown out of the defendant’s breach of the executory contract.</p> <p>Id.—Obligation to Pay Money—Consideration—Executory Contract —Measure of Damages for Breach—Pleading.—The measure of damages upon an obligation to pay money is not the amount due by the terms of the obligation, with interest thereon, unless the consideration has passed to the obligor; but, when the consideration has not passed, and the contract is executory on both sides, and the promisee has not done the things required of him to be done, nor made a bona fide or valid offer or tender thereof, so as to pass the consideration to the promisor, he can only recover the actual damages, if any, suffered by the repudiation of the contract by the promisor, and must plead such damages in order to recover the same.</p>