The record-union., 1891-01-25
we're not sufficient The substance of these

we're not sufficient The substance OF these
First-That defendants signature to the con-
tract obtained by fraud, consisting of
false and fraudulent representations, etc.
Second-That White was the purchaser and
the real party in interest, and was so ac-
cepted and regarded by the plaintiff.
IL Is true that findings should respond to
and cover all of the material issues raised by
the pleadings, but they should be statements
only of the ultimate facts, and not of the pro-
bative facts. taathews VS.. Kinsell, IL Cal.
o12) In this case we think the findings did
meet and negative all the ultimate facts af-
firmatively alleged in the answer. and that
they should be held sufficient.
1t is also contended that, under the rule that
pleadings are to be construed most strongly
against the pleader. the averment in the COM
plant that plaintiff prior to the institution
of this suit offered to execute and deliver to
defendant deed of said premises together
with certificate of title, upon compliance -
ETC., must be construed as relating to q time
Immediately preceding the institution of the
suit; that the offer of q deed and demand of
payment were therefore not made until nearly
eleven months after the money sued for be-
came due and payable; and that plaintiff, by
his neglect to tender the deed and demand
payment when the money became due, had
lost all right to sue for and recover the money
under the express provisions of the contract.
The provisions of the contract relied upon as
effecting this result are those above quoted
1t will be observed that it is also averred in
the complaint that plaintiff has duly
performed all of the conditions of said con-
lIdct 10 De performed by MN 10 UnlS Time"
This was sufficient averment of the perform
ance of conditions precedent (Sec. 457, c. C.
P.l, and it is not denied by the answer. This
being so, how can it be said that plaintiff was
in default and thereby lost his rights?
But however this may be, it should be
noticed that the substance of the provisions
relied upon is, that time is of the essence of
the contract, and if defendant shall fail to
comply with its terms, then the plaintiff shall
be released from all obligations to convey the
property, and defendant shall forfeit all right
thereto and to the moneys paid, and all his
interest in or to the said moneys and property
shall Immediately cease, as fully as if the
moneys had never been paid or the agreement
entered into"
In this there is no provision that the plaintiff
shall forfeit his rights if the money is not paid
on time; and in WilcoXson VS.. Suit, 65 Cal.
500, where a similar contract was under re-
view, it was held that the failure of the vendee
to make the payments provided for did not
make the contract void, so far as the vendor
was concerned, but that he had the option to
avoid or enforce the contract, and might, If he
elected to do SO, sue for and recover the ball
ance of the purchase money.
That case seems to be decisive of this and
as the above are all the points made for q re-
versal, we advise that the Judgment be
affirmed. BELCHER, G.
We concur:
VANCLIEF, c.,
HAYNE, c.
THE COURT.
For the reasons given in the foregoing
opinion the Judgment is affirmed.