Shively v. Semi-Tropic Land & Water Co.

Citations

• 99 Cal. 259
• 33 P. 848
• 1893 Cal. LEXIS 649

Syllabus

<p>Vendor and Purchaser—Rescission of Contract of Sale—Recovery Back of Purchase-money Paid — Forfeiture Clause. —When a contract of sale and purchase of land is abandoned or rescinded by the parties, the purchaser, though in default, may recover back installments paid upon the purchase-money, less the actual damage to the vendor occasioned by his breach of contract, notwithstanding a forfeiture clause in the contract rescinded.</p> <p>Id. —Action by Assignee of Purchaser—Honey Had and Received—Contract Prohibiting Assignment. — An action by the assignee of the rights of a purchaser of land to recover back from the vendor, upon an alleged rescission of the contract of purchase, the installments paid on the purchase price of the land, is an action for money had and received, and not an action arising under the contract; and the assignment by the vendee of the cause of action is no violation of the provisions of the contract prohibiting its assignment.</p> <p>Id. — Sales of Land by Vendor to Third Parties—Rescission—Insufficient Complaint—Answer Supplying Defect.—A conveyance to third parties by a vendor of land contracted to be sold to a purchaser does not of itself constitute a rescission or abandonment of the contract by the vendor, or a breach of his contract; and a complaint in an action to recover back purchase-money paid, alleging a rescission of the contract merely by reason of sales by the vendor to third parties, who took possession as owners thereof, and made large and lasting improvements thereon, does not state a cause of action; but the defect in the complaint is supplied where the answer avers that the defendant treated the contract as rescinded and sold the land to other parties.</p> <p>Id.—Pleading—Defects in Complaint Cured by Answer.—When a complaint fails to set forth material facts so that no cause of action is stated, but the answer avers such facts, the omission in the complaint becomes immaterial, and the defect therein is cured by the answer.<