Townsend v. Tufts

Citations

• 95 Cal. 257
• 30 P. 528
• 1892 Cal. LEXIS 812

Syllabus

<p>Vendor and Purchaser — Action to Recover Purchase-money Paid — Time oe Essence—Pleading — Insufficient Complaint-—Want of Performance by Plaintiff. — A complaint by a purchaser to recover money paid upon a contract for the purchase of laud, which alleges that by the terms of the contract the sum sued for was to be paid down, and • the remainder of the purchase-money was to be paid in installments, and that upon the payment of the last installment the vendor was to execute a deed of the land; that time was made the essence of the contract by express terms; and that at the maturity of the contract the vendors failed and refused to execute a deed; but which does not allege a payment of any deferred installments, or a tender of performance, or an excuse for a failure to make the tender, or any rescission of the contract, — does not state a cause of action.</p> <p>Id.—Mutual Neglect to Perform—Rescission — First Breach by Purchaser — Tender and Demand of Conveyance.—The mere neglect of both parties to such contract to perform the contract on the day fixed for its performance could not, without anything more, operate as a rescission thereof; and when the complaint shows a first breach of the contract on the part of the purchaser, by failure to pay the first deferred payment a full year before the vendors were required to convey, a full tender on his part of the remainder of the purchase-money due, and a demand for a deed, is essential to a recovery of the purchase-money paid, and it is not enough to allege a refusal of the vendors to make and tender a deed at the date fixed for conveyance.</p>