Smith v. Mohn

Citations

• 87 Cal. 489
• 25 P. 696
• 1891 Cal. LEXIS 1010

Syllabus

<p>Vendor and Purchaser—• Contract of Sale — Execution — Findings— Exhibit — Surplusage. — If a contract for the purchase of land is set out in hwe verba in the complaint, a finding that the vendor entered into an agreement in writing with the vendee for the sale of the land upon the terms and conditions set forth in the complaint is a sufficient finding that the vendee executed the contract; and a further reference in the findings to an exhibit, which is not made a part of the pleadings, findings, or record, may be rejected as surplusage.</p> <p>Id.—Findings — Amount Due upon Contract. — A finding of the amount due the vendor upon the contract is sufficient, without stating that it was due from the vendee, where the vendor and vendee are the only parties who signed the contract.</p> <p>Id. — Fraud — Purchase by Third Party — Affirmative Defense — Sufficiency of Findings.—Affirmative matter, alleged in the answer, that the vendee’s signature to the contract was obtained by fraud, and that a third party was the purchaser and the real party in interest, and was so accepted and regarded by the vendor, is sufficiently met and cov- . ered by a finding that the signature was not obtained by fraud, and that the vendor did not accept and receive the contract with knowledge and notice that the third party was the real purchaser.</p> <p>Id. — Pleading — Performance of Conditions Precedent.—An averment that the vendor duly performed all of the conditions of the contract to be performed by him up to the time of bringing suit is a sufficient averment of the performance of conditions precedent.</p> <p>Id. ■—Time of Essence of Contract — Default of Vendee — Action for Purohase-money. — Under a contract for the sale of land, providing that time shall he of its essence and that a failure on the part of the vendee to comply with its terms shall forfeit all his rights thereunder, the failure of the vendee to make the payments provided for does not make the contract void as to the vend