Los Angeles herald. [volume] (Los Angeles [Calif.]) 1890-1893, 1891-12-23
DUNLAP vs.. SHAFER.
INTERESTING LAW POINTS DE
CIDED BY JUDGE SHAW.
The Result of a Boom-Time Land Buy.
The Plaintiff Wins the Suit-Features
of the Opinion.

Judge Shaw yesterday handed down q
decision in the case Of Dunlap We. Shaier
ct al, finding for the plaintiff.
The suit was brought by G. L. Dun
lap to recover from A. @. Shafer and A.
0. Daman &c tain sums OF money paid on
an agreement to purchase land. The
plaintiff set up in his complaint that in
December, 1887, he entered into an
agreement with the defendants to pur-
chase lot SIS in the Daman & Willard
tract, agreeing to pay $500 for the prop
erty. He made several payments, when
the defendants notified HIM that they
could not perform their part OF the
agreement.
The plaintiff then demanded a certif-
icate of title to the property and ten
dered the balance of the purchase
money. Not receiving the title, he
brought suit to recover the sum of
$106l.90.
In this decision Judge Shaw says:
All question as to the sufficiency of
the allegations of the complaint may be
dismissed from consideration because it
is well settled that under his count for
money had and received the plaintiff
may recover money paid on contract
which has been rescinded.
The question whether the five days.
time specified in the notice of Dec. %,
1890, for defendant to perform was or
was not reasonable, is not important,
because in fact the defendant was al
lowed forty days thereafter before the
suit was brought within which he might
have perfected his title and rendered
his deed II he considered five
days unreasonably short he should
have SO informed Mr.. Tyler at
the time and he should at all events
have made effort to perform his obliga-
ton. Instead OF making an effort it APP
pears that he has done absolutely
nothing; that he simply stated that
thirty days would be required, but did
not ask any extension nor make any
effort whatever to perform eitherthen or
at any other time.
Upon the question of fact as to
whether or not the defendant, prior to
the maturity of the contract told Mr..
Tyler that he would not be ready to con-
vey at the time agreed, l think the pre-
ponderance is with the plaintiff. Mr.
Tyler's recollection must prevail over
Mr.. Skaters want Of recollection, both
being equally credible. The fact that
he really was not able to give good
title at that time, strongly corroborated
the testimony of Tyler. | think plaintiff
was excused from making his offer
promptly on the day, and also from
making it before he actually did. The
delay was at the request of defendant.
| do not think it was necessary that
Daman should have participated in the
statements.
The plaintiff has never offered to re-
lease any interest he may have under
the contract, which is recorded.
From the point of view occupied by
an abstract Office, this may perhaps be
a condition precedent to recovery, but /
do not think that it is so in law. The
records of this court are as much public
records as those of the recorders office,
and the record of this case will be
ample to show that the plaintiff can
claim nothing under the contract, so
far as the land is concerned, il lie OBJ .
tains the judgment he asks for. The
possession of the land is deemed to be in
the defendant and nothing appears TO
the contrary.
Jam of the opinion that plaintiff is
entitled to judgment as prayed for in his
complaint.
Findings and judgment will be drawn
accordingly. LUCIGN SHAW,
Judge.