Peninsular Trading & Fishing Co. v. Pacific Steam Whaling Co.

Citations

• 123 Cal. 689
• 56 P. 604
• 1899 Cal. LEXIS 1139

Syllabus

<p>Accounting—Mortgagee in Possession—Agreement Reciting Ownership and Repurchase—Complaint—Demurrer.—A complaint for an accounting against an alleged mortgagee in possession, which alleges that plaintiff was the owner of the property at all times, and that after the time fixed by the original agreement for payment of the indebtedness seemed, a new agreement was entered into for the purpose of securing the remainder of the indebtedness, by the terms of which it was recited that the mortgagee was “now the owner of the residue of the property,” and declared that the property should be repurchased by the plaintiff within a specified time, and that time was of the essence of the agreement, is not subject to a general demurrer for want of sufficient facts, on the ground that the recitals of the new agreement control the allegations as to security and estop the plaintiff from alleging that defendant was not the owner of the property.</p> <p>Id.—Form of Instrument—Purpose of Security—Estoppel.—The court will not look to the form of the instrument, hut to its real character as having been given for the purpose of securing indebtedness; and conceding that the new agreement -bears no visible earmarks of a mortgage, if the fact be, as the complaint alleges, and the demurrer admits, that it was entered into for the purpose of such security, no form of words, however adroit, can estop the plaintiff from pleading and proving that fact</p> <p>Id.—Purpose of Instrument a Question of Fact.—Whether it was the real purpose of the instrument to secure the residue of the indebtedness of plaintiff to defendant, as alleged, or whether Its object was to establish the relation merely of vendor and purchaser, is a question of fact which the plaintiff is entitled to have tried as an issue of fact upon answer.</p> <p>Id.—Stipulation Making Time of Essence.—The stipulation purporting to make time of the essence of the contract can only have effect if the real object of the contract was to estab