The record-union., 1891-01-11

to the 81 900 Heretofore paid by him: and (2l
that between April 20, 1855, and April "a,
1882 certain taxes and assessments amount
ing to $114 S5 were levied upon said lots and
became due and payable and that plaintiff
never paid nor rendered them or any part
thereof, and that defendants were compelled
to pay a street assessment of S45.
The proffered answer also contained the fol-
lowing, which was not in the first amended
answer
Defendants deny that they or either of
them elected TO rescind said contract of sale in
complaint mentioned, or that they did re-
scind the same, but, on the contrary, allege
that plaintiff rescinded said contract and
every portion thereof long prior to the 24th
day of April, 1SS9."
The Court denied the motions to set aside
the judgment, the defendants appeal from the
judgment and also from the order deny
ing their motion, upon the Judgment roll con-
tanning their bill of exceptions.
1. think there was no error in rendering
judgment on the pleadingS. 1t clearly appears
that the contract was rescinded long before
the commencement of the action, and that it
was SO considered by both parties. Time was
of the essence of the contract. Plaintiff failed
to pay the 81, 500 on or before June 90, 1855
according to the agreement, and did not ten
der payment thereof until April "a, 1889,
when the defendants refused to accept it and
execute deed, on the ground that plaintiff
had abandoned and annulled the contract by
falling to tender payment within the stipu-
lated time-sixty days. They say in their
pay according to the terms of the contract,
they treated the contract as abandoned and
annulled by plaintiff and the 81 ,OGO paid, as
forfeited, and they do not deny the averment
in the complaint, that they "elected to rescind
said contract of SALE"
From the time defendants refused to accept
payment and execute a deed april "a, 1851
the plaintiff has considered the contract re-
scinded, and bases this action partly upon
that ground, his complaint stating facts from
which a reScission is q necessary inference
Under these circumstances the plaintiff was
entitled to recover the 81 900 paid by him.
less such actual damages as may have been
sustained by the defendants by PLAINTIFFS
breach of the contract. Grey VS.. Tubbs, 43
Cal. 364; Cleary VS.. Folger, "a Cal. 316l.
But such damages cannot be recouped in this
action for the reason that none such has been
pleaded. Qd)
Counsel for appellants contend however.
that his clients are entitled, under the express
stipulation of the contract, to retain the ST.
600 paid, as iiquidated damages: Whereas re-
spondents counsel claim that the stipulation
as to liquidated damages is void. This is the
principal issue presented for decision think
the stipulation is void under the follOwinr
sections of the Civil Code:
Section 1870. Every contract by which
the amount of damages TO be paid, or other
compensation to be made for a breach of an
obligation, is determined in anticipation
thereof, is to that extent void, except as ex-
preSsly provided in the next section.
''Section 1871. The parties to u contract
may agree therein upon an amount which
shall be presumed to be the amount of dam
age sustained by a breach thereof when from
the nature of the case, it would be hnpractica-
BILE or extremely difficult TO fix the actual
damage"
1t appears from The nature of the contract
under consideration that 1t would not be inn
practicable or at all difficult to hS the actual
damage in this case, since Section 1907 OF the
Civil Code provides rule by which the dam
age, in all cases OF this kind may be measured
and definitely fixed as follows:
1.-The detriment caused by the breach of an
agreement to purchase an estate in real prop
erty is deemed to be the excess, if any Of the
amount which would have been due to the
seller, under the contract, over the value of the
That is, the excess of the agreed price over
the value of the property to the party who
agreed to sell.
In Field on Damages (Section 5OS) the rIIle
is stated as follows:
1.-THE general rule of damages on failure of
the vendee to take the property purchased
and pay for the same, would be the actual loss
sustained by the vendor thereby; which would
ordinarily be the difference between the actual
contract price and the actual value OF the land
at the time of the breach if the property shall
have declined in value" (See also Eva VS.
Mcmahon, II Cal. 467).
The defendants not only failed to plead anv
damages to them, but alleged in their answer
an increase of 81, 600 in the value OF the prop
erty between the default of the plaintiff and
their refusal to accept payment and execute "a
deed: and as it does not appear that plaintiff
ever had possession of the property. but does
appear that defendants We're IN possession at
the time they answered, they can claim moth
ing for use and occupation.
No material averment ofthe COMPLAINT was
denied. The denial of ofindebtedness was but a
conclusion of law inconsistent with the ad-
mitted facts.
The defendants We're not entitled to any af-
firmative relief upon their cross-complaint.
which they have not obtained by the judgment
on the pleadings. Both the complaint and an
swer admitted that the agreement had been re-
scinded and annulled by the parties; and as
the judgment on the pleaiings partly rests
upon that fact, it is conclusive evidence OF the
fact.
The agreement was not recorded and. not
being acknowledged, was not entitled to rec
ord. Besides, the cross-complaint does not
offer to refund the money or any psrqt thereof
admitted to have been received by the defend
ants under the contract. (Bohall VS.. Diller,
Al CAL 533).
1t is contended that the complaint fails to
state a cause of action, in that no demand is
alleged. The action is to recover money had
and received by defendants to the use of the
plaintiff and it is alleged the defendants ..re-
fused and still refuse to ppy to plaintiff said
sum OF one thousand dollars or any part
thereof" The answer admits the receipt of
the money and alleges that defendants stcon-
verted the said 81 900 to their own use.v
From the time the defendants elected to re-
scind the contract, or to consider and treat it
as rescinded, 1t was their duty to refund the
money they had received under the contract
and no demand before suit was necessary
(Qu1mby VS.. Lyon, 63 Cal. 394.)
2. 1t does not appear that there was any
error or abuse of the discretion of the Court in
overruling the defendants motions to set
aside the Judgment, and counsel for appellants
has not urged this point here. The averment
In the proffered answer, that defendants ten
dered TO plaintiff deed on the goth day of
June, 1883, and demanded payment ETC.
only shows that plaintiff was first in default
1t does not change OF dispute the fact that
both parties considered and treated the con-
tract as rescinded, as above stated; and, had it
been inserted in the answer on which the
Judgment was rendered, the plaintiff would
still have been entitled to Judgment ON the
pleadings.
/ think the judgment and order should be
affirmed. VANCLIEF- G.
We concur:
FoOTE, c.
BELCHER, @.
THE COURT.
For the reasons given in the foregoing opin-
lon the judgment and order are affirmed.