Los Angeles herald., 1891-07-11

whereby the defendant agreed to sell to
the plaintiff certain lands in Santa Bar
bara county for the sum Of $120, 900, to
be paid as follows: $1,000 at the date OF
the contract; $4,000 within thirty days
thereafter: $35, 900 on oribefore Novem
ber /, 1887, and $4,000 at such time
thereafter as the plaintiff should on
November |, 1887, elect, not exceeding
three years from date.
The following clause appears in the
contract 1T is further understood and
agreed that if the party OF the second
part does not pay said $4,000 within
30 days, or said $35 900 OH or before the
first day Of November, 1887, this con-
tract shall terminate and the party OF
the first part shall not thereafter be un-
der obligations by reason of this con-
tract, nor need he return the $1,000 nor
any part OF it."
As required by the contract, plaintiff
paid to the defendant $1,000 at the time
of the execution thereof and $4,000
within thirty days thereafter. Nothing
further was done by either of the par
ties until on or about November J., 1887,
when plaintiff decided to proceed no
further under the contract and to
forfeit the $1,000 paid by him.
He then so notified defendant and de-
manded that he repay the sum of $4,000,
but defendant refused to pay it. Some
time in 1888 defendant sold the property
mentioned in. the contract to other par
ties. Therefore the plaintiff prays
judgment against the defendant for the
sum of $4,000 with interest and costs.
The defendant interposed a general
demurrer to the complaint, and it was
sustained by the court. The plaintiff
declined to amend and thereupon judg.
ment was entered that he take nothing.
From that Judgment the plaintiff ap-
pealed. The conclusion reached in the
opinion is as follows:
"We think the demurrer was i'm
properly sustained. The case in all ma
terial respects is like Cleary VS.. Folger,
"a Cal. 316, and Drew VS.. Pedlor, 81 Cal.
443, and on the authority OF those cases
we advise that the judgment be reversed
and the cause remanded with directions
to the court below to overrule the de-
murrer." The opinion is written by
Commissioner Belcher.
MINOR CASES.
Judge Van Dyke yesterday in depart
ment four handed down an opinion in
the case OF j. A. Cowell vs.. N. Whittle-
sey ordering findings and judgment for
the defendant. The case was an action
to recover part of the purchase money
paid on executory contract for the pur-
chase OF land, the plaintiff having failed
to either pay at the maturity of the con-
tract or demand a deed.
In the case of Frederick Eaton vs..
Doria Jones, Judge Van Dyke yesterday
in department four ordered findings and
judgment for defendant. The case was
an action to quiet title to a strip of land
twenty feet wide between lots and g.
block B. of the Hancock donation lots.
Judge Van Dyke yesterday denied
plaintiffs motion for a new trial in the
case of A. W. Boggs vs. the Lordsburg
Hotel company.
Judge Van Dyke yesterday ordered
judgment and findings for the defend
ant in the case of Henry Longe ct al. vs..
Leopold Winter et al, an action to re-
cover damages incurred by reason of
the failure of defendants to carry out a
contract to furnish plaintiffs employ
ment as plumbers.
Judge Wade yesterday rendered a
judgment for plaintiff in the suit of
Jones vs.. Henry, an action to recover
possession of certain lots on Ocean ave-
nue. at Santa Monica.
The German Loan and Savings asso-
citation recovered judgment from f. L.
Reyes on foreclosure suit. on mort
gage for $4,000 in department three yes
terday. sn.f