Naftzger v. Gregg

Citations

• 99 Cal. 83
• 33 P. 757
• 1893 Cal. LEXIS 618

Syllabus

<p>Vendor and Purchaser—Action toon Notes for Purchase-money — Consideration —Defense—Insufficient Complaint—Tender of Deed.—In an action by a vendor of land upon promissory notes given for the last two installments of purchase-money, where the complaint does not allude to the contract nor allege a tender of a deed before bringing the suit, an answer setting forth the contract and averring that the execution of the contract and the making of the notes were part of the same transaction, and that the contract was the only consideration of the notes, from which it appeared that the covenants of the vendor and purchaser were mutual and dependent, and that neither could put the other in default without tendering a performance on his part, discloses a defense to the action, and shows that the complaint is defective in not alleging the tender of a deed by the plaintiff before suit.</p> <p>Id.—N on-exeo ution of Deed—Immaterial Averment and Findim.—An averment in the answer that the plaintiff has not executed a deed as provided in the contract, and thejdnding of the court that that averment is true, is immaterial, as defendant on his part could not insist upon such execution, or put plaintiff in default without a tender of purchase-money by him, though the complaint should allege the tender of such deed in order to put the defendant in default for non-payment of the purchase-money.</p> <p>Id.—Answer for Want of Information or Belief, —An answer placing a denial of an averment of the complaint, on the ground of want of information sufficient to enable the defendant to answer the same, without also averring that they have no belief on the subject sufficient to enable such answer, is not sufficient to raise an issue.</p> <p>Id. —Former Adjudication—Pendency of Action.—An action is deemed pending under section 1049 of the Code of Civil Procedure from the time of its commencement until its final determination upon appeal, or until the time for appeal is past, unless the judgment