The record-union., 1891-01-11
DEPARTMENT TWO

A. NJ. DREW, Respondent,
A. PEDLAR and NO. 13,75o.
M. NJ. GARRoUTTE, Appellants.
On the goth day of April, 1888. the parties
to this action entered into a written agree
ment whereby the defendants agreed to SELL
ana the plaintiff to purchase, three lots Of land
In the town of Fresno at the price of SIS, 800,
to be paid as follows: 81 900 upon the execu-
ton OF the agreement; $500 within sixty
days from the date of the agreement, and to
assume and pay a mortgage of $4,000 to
Robert b. Thompson; and also to pay the in
terest on the mortgage and all taxes there
after to become due on the land. The agree
ment also contains the following provisions:
SIN the event of the failure to comply with
the terms thereof, by the said party of the
second part, the parties of the first part shall
De released 1rom all obligation in law or
equity to convey said property, and said party
OF the second part shall forfeit all right thereto
and all money paid thereon shall be as liuui-
dated damages for the non-fulfllrnent thereof
by the party of the second part. And the said
parties of the first part on receiving such pay
ments, at the time and in the manner above
mentioned, agree to execute and deliver to the
said party OF the second part, or to his assigns,
good and sufficient deed conveying the said
land free and clear of all membranes made,
done or suffered by the said parties of the first
part, except as above specified.
"And it is understood that the stipulations
aforesaid are to apply to and to bind the
heirs, executors and administrators and as
signs OF the respective parties and that time is
OF the essence OF this contract"
The plaintiff paid 81 900 upon the execution
of the agreement, but failed to pay the 81 500
when the same became due, and never offered
to pay the same or any part thereof until the
gath day of April, 1883 about ten months
after maturity, when he rendered full pay
ment and demanded O. deed for the land The
defendants then refused to accept payment or
to execute a deed, and also refused to refund
to plaintiff the 81 900 paid by him upon the
execution of the agreement, and elected to re-
scind the agreement. Thereupon the plain
tiff commenced this action to recover the
81 900 paid by him upon the execution of
the agreement, formally alleging in his CON-
plant the facts above stated.
The defendants filed an amended answer In
which they expressly admit the execution of
the contract and the payment of 81 900, as
alleged in the complaint; bnt allege that they
have performed their part of the contract and
that plaintiff failed and refused to pay the
$500 or any part thereof when the same be-
came due, and that he abandoned the contract.
They admit, however, that plaintiff made the
tender of payment and demand for a deed on
April "a. 1889, as alleged in the complaint.
They further "allege that on the failure OF
plaintiff to perform his said covenants, they
treated the $1,000 heretofore paid as for
feited, and said contract is abandoned by the
plaintiff, and annulled, and that they con-
verted the said 81 900 to their own use.n
They further allege that s'the said property
had greatly increased in value between June
crease was of the value Of So 900"
They "deny that they are indebted to plain
tiff in any sum, or that plaintiff has sustained
o
or either of them"
To this answer the defendants added cross
complaint, in which they set out the agree
ment; allege the payment of the $1,000; the
performance thereof on their part; the failure
and refusal of the plaintiff to perform on his
part, except as to the payment of the 81 900;
| that defendants are the owners and in po-
session OF the land described in said contract
that said contract is a cloud upon defendants
title to said land;" and praying that the con-
tract be declared void and Of no effect, and
hot han 1Nd F1,
as they may be entitled to.
Upon due notice plaintiffs counsel moved
for Judgment on the pleadings. At the time
appointed counsel for the respective parties
appeared and plaintiffs counsel argued the
motion, and 1t was submitted on briefs to be
thereafter filed, but defendants counsel failed
to file any brief.
Some time after the expiration of the time
agreed upon and allowed for filing BRIEFS to
wit: On October 12, 1889, the Court rendered
Judgment for the plaintiff for 81 900 and in;
terest thereon from April "a, 1889, and
costs.
Thereafter upon due notice defendants
counsel moved the Court to set aside the
judgment on the grounds:
/. That the complaint does not state facts
sufficient to constitute cause of action.
2. That no written findings of facts were
3. That material allegations of the complaint
were denied.
4. That no answer was made to the cross.
5. That the answer stated new matter con.
stituting defense to the action.
AT the same time defendants counsel made
another motion to vacate the judgment on the
ground "that said judgment was made and
entered against defendants, through their
mistake, inadvertance and excusable ne
glect."
This motion was made on afidavits. in con
nection with which they proffered q draft of a
second amended answer which they proposed
to file in case the judgment should be sci
aside.
The following are the affidaytts upon which
the motion was made:
'R. B. Terry being first duly sworn, deposes
and says that he is now and at all times since
the defendants have appeared in this action
their attorney In said matter; that when the
motion heretofore made by plaintiff for judg
ment upon the pleadings herein, was ordered
submitted by the Court upon briefs thereafter
to be filed by counsel for plaintiff and briefs
OF defendants in reply thereto, affiant upon re-
celv1ng the briefs of counsel for plaintiff was
unable to find in the city of Fresno the au.
thorities upon which his answer to said briei
would be made, and that upon an examina-
ton of said authorities at hand, affiant de-
termined that in order that the case should be
| fully determined upon its merits that he
would ask leave of the Court to file a second
amended answer; that so intending he did not
answer such brief. r. B. TERRY
"a. ]. -Pedlar being first duly sworn, de
poses and says, that he is one of the defend.
ants in the above entitled action: that the
Judgment herein entered on the 18th day Of
October, 1889, was entered through mistake
| inadvertence, surprise and excusable neglect,
and was shown in the affidavit of r. B. Terry,
filed herewith.
"Affiant further says that he has fully and
fairly stated the in this action to his said
counsel, r. b. Terry, who resides in the county
OF Fresno, State of California, and after such
statement, is advised by said r. B. Terry that
he has good and substantial defense on the
merits of the action, and thoroughly believes
the same to be true. A. J. PEDLAR"
The profered amended answer contained
two ayerments in addition to the first amend
ed answer, TO the effect u that defendants had
rendered to plaintiff sufficient deed for the
lots on the goth day Of June, 1855, and at the
same time demanded payment of the sum OF
$500, which, by the terms of the agreement
the plaintiff was to pay ION or before sixty
days from the date" of the agreement: but
that plaintiff then refused to pay said sum or
anY part thereof and therehy released fha do.