Thomas v. Pacific Beach Co.

Citations

• 115 Cal. 136
• 46 P. 899
• 1896 Cal. LEXIS 984

Syllabus

<p>Vendor and Purchaser—Breach of Contract of Sale by Vendor— Action to Recover Back Purchase Money—Implied Assumpsit— Statute of Limitations.—Where a written contract for the sale of land contained no express agreement to refund the installments of purchase money in the event of the failure or refusal of the vendor to convey as agreed, an action by the purchaser to recover back such purchase money upon breach of the contract on the part of the vendor is not based upon the written contract, but upon an implied assumpsit, and is governed by the two years’ limitation under subdivision 1 of section 339 of the Code of Civil Procedure.</p> <p>Id.—Accruing of Cause of Action—Running of Statute.—Under a contract not expressly requiring a demand for a deed, the cause of action for recovery of the purchase money would accrue at the date of the last payment, and the statute of limitations would run from that time.</p> <p>Id.—Demand for Deed—Modification of Contract.—Where tne contract for sale originally provided for a demand for a deed, it is competent for the parties by a subsequent agreement to modify the contract, and where it appears that, by a subsequent agreement, a specified sum was paid and received “in full performance by the purchaser of his part of this contract, ” the effect of such modification is to entitle plaintiff to a deed immediately upon payment and receipt of the money so stipulated to be received without further act or demand for a deed on his part.</p> <p>Id.—Stipulation for Demand—Reasonable Time.—Under a stipulation in a contract of sale for .the demand of a deed by the purchaser, the demand must be made within a reasonable time, and if no demand is made within two years after payment of the last installment of purchase money, the action is barred, and a demand after that time has elapsed is too late to conserve the plaintiff's right.</p>