Perry v. Quackenbush
Citations
- 105 Cal. 299
- 38 P. 740
- 1894 Cal. LEXIS 1154
Syllabus
<p>Building Contract—Nonperformance — Cancellation of Note and Mortgage.—The owner of a lot who has entered into a contract with a builder to construct a house upon the lot may, upon failure of the builder to construct the building in a good and workmanlike manner, and to furnish the quantity and quality of materials provided for in the contract, and to construct the building substantially according to the contract, maintain an action to have a note and mortgage upon the lot which were executed and delivered in consideration of the contract price for the building, delivered up and canceled.</p> <p>Id.—Findings—Support of Judgment.—Where the court found that the building had not been constructed according to the contract, and that it had not been accepted by the plaintiffs as performed, and further found that there was a difference of three hundred and fifty dollars in the value of the building as actually constructed, and as it should have been constructed under the agreement pursuant to the specifications, a judgment that three hundred and fifty dollars be deducted from the amount secured by the note and mortgage, and adjudging that the residue of the note and mortgage was valid, is not supported by the findings of fact, and the plaintiff is entitled to a judgment upon the findings canceling the note and mortgage.</p> <p>Id.—Findings—Probative Facts—Ultimate Facts.—It is the province of the trial court to find ultimate and not probative facts, and findings of probative facts will not, in general, control, limit, or modify the finding of the ultimate facts, or tend to establish that the ultimate fact was found against the evidence.</p> <p>Id.—Intentional Departure from Contract—Attempted Fraud—Sub- - stantial Performance.—Where the findings show an intentional departure of the builder from the contract, and indicate an attempted fraud on his part, there can be no substantial performance of the contract; nor does the finding that the difference between the value of t
Judges: Temple
Read full opinion on CourtListenerCited by
16 cases in this archive cite this case.
- Garrison v. Edward Brown & SonsCalifornia Supreme Court· 1944-12-26· cited 45×
- United States Pipe & Foundry Co. v. City of WacoCourt of Appeals of Texas· 1936-11-19· cited 33×
- Shell v. SchmidtCalifornia Court of Appeal· 1958-10-20· cited 28×
- People v. HeckerCalifornia Court of Appeal· 1960-04-18· cited 28×
- Fitzpatrick v. UnderwoodCalifornia Supreme Court· 1941-04-16· cited 24×
- Marchant v. HayesCalifornia Supreme Court· 1897-08-24· cited 15×
- Rowe v. BlakeCalifornia Supreme Court· 1896-05-20· cited 10×
- Ross v. McDougalCalifornia Court of Appeal· 1936-02-27· cited 6×
- Culmer v. Hooper-CaineUtah Supreme Court· 1900-06-09· cited 6×
- Chaffee-Miller Land Co. v. BarberNorth Dakota Supreme Court· 1903-12-16· cited 4×
- Vila v. BrovelliCalifornia Court of Appeal· 1935-01-18· cited 3×
- Miller v. SmithCalifornia Court of Appeal· 1960-03-22· cited 3×
- Fairbanks v. RollinsCalifornia Supreme Court· 1898-08-04· cited 1×
- Schindler v. GreenCalifornia Supreme Court· 1905-11-16
- Riggle v. Janss Inv. Corp.Ninth Circuit· 1937-02-15
- Hohenshelt v. Superior CourtCalifornia Supreme Court· 2025-08-11
Cites
8 cases in this archive are cited by this case.
- Elliott v. CaldwellSupreme Court of Minnesota· 1890-06-02· cited 36×
- Pico v. CuyasCalifornia Supreme Court· 1873-07-01· cited 32×
- Smith v. AckerCalifornia Supreme Court· 1877-07-01· cited 31×
- Gill v. DriverCalifornia Supreme Court· 1891-06-30· cited 18×
- Fairbanks v. LampkinCalifornia Supreme Court· 1893-08-31· cited 15×
- Mathews v. KinsellCalifornia Supreme Court· 1871-07-01· cited 10×
- Barrante v. GarrattCalifornia Supreme Court· 1875-07-01· cited 6×
- Downing v. GravesCalifornia Supreme Court· 1880-07-01· cited 5×
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