Los Angeles herald., 1892-12-21
SOME POINTS ABOUT CONTRACTS
An Interesting Decision Rem
dered by Judge Wade.
Louis g. Tucker Acquitted Of the
Charge of Burglary.
happenings in the Various Tribunals
Yesterday = Court Notes New
Gases Which Were Filed
Yesterday.


cided by Judge Wade in an opinion
handed down by him. The case is q
relic Of boom days and was brought by
@. E. De Camp vs. DR.. Chas. w. Bryson
The land in controversy is situated on
Boyle Heights and was purchased upon
contract by John A. McCarty, who
assigned bis interest to the plaintiff,
who brought this suit. The Gaze was
decided by the court in favor OF the
plaintiff, who was represented by Jay
E. Hunter and the defendant by Hon.
j. T. Bearden and L.. H. Valentine.
The opinion is as follows:
This is an action to vecover money
paid on q contract between plaintiffs
assignor and defendant for the purchase
OF real estate, upon the ground that the
contract was rescinded by plaintiffs
assignor because of defendants breach
of it's terms.
The contract is in the usual form, &C.
knowledging the receipt of part OF the
purchase money, providing for the pay
ment of the balance on or before GER
tain day, and containing the clause that
time is the essence of the contract. This
latter provision, however, appears to
have been waived by defendant. There
is evidence tending to prove this waiver
in express words, accompanied by words
tantamount to an admission that he (de-
fendant) was not at the date of the ma.
turity of the agreement able to perform
his part of it. It appears, moreover, by
evidence which il undisputed, as we'll as
by the allegations of the answer, that
defendant treated the contract as still in
force long after the date fixed for final
payment and conveyance.
The evidence further shows that, not
withstanding the lapse of time, plain
tiff's aeeignor was the only one of the.
parties who ever rendered complete per-
formance of the terms of the contract,
saving as to the matter of time. and
that defendant has. 80 far as appears,
never been in q condition to perform
and has never made tender or offer of
performance he has never offered to
furnish the certificate of title provided
for in the contract, nor does it appear
from the evidence that he is now or ever
has been able to furnish aach certificate.
It is fair to presume that the certificate
would show the title of record to be
about as the records actually show it.
The title for which plaintiffs assignor
must BIZ presumed to have bargained
was one which should not only be good
when brought to the test of judicial
investigation between parties appearing
to have conflicting claims, but 90 obvi-
certain that it would never be necessary
q merchantable title. So far from this
hasv, nr .
as it appears of record, it seems to be
incumbered by a mortgage. For that
matter, it appears never to have been
freed from incumbrance of this nature
since the date of the contract.
This condition of things was not inn
proved by the fact that defendant had
conveyed the property to another, SUBJ
iect to the contract his grantee refused
to perform.
When plaintiffs assignor made his
tender be was not then in default. The
tender was of complete performance and
defendant's refusal absolute. This en-
titled the former to rescind, which he
did on the following day and demanded
the return of the purchase money paid.
A question is raised as to the consider
alton actually paid. Defendant claims
agreement, and supports his contention
by proof that it was paid in other prop
erty--real estate-and not in cash as
acknowledged in the written agreement.
Undoubtedly the actual consideration
paid may be inquired into, for the pur.
pose Of fixing the amount of the recov.
cry, in cases of this kind. But in the
case at bar defendant failed to show. as
alleged in the answer, that the amount
paid in property was merely nominal,
or different from that acknowledged.
True, some doubt wae cast upon the
actual Value, at the time, Of the prop.
erty conveyed to defendant; but this is
not the true test Of the amount of con-
sideration actually paid. When two
persons agree to change properties, the
question of relative value to be fixed
upon the several parcels is one for them
to determine for themselves. In the
absence OF fraud the court will not un-
dertake ts rectify their estimates. There
is no evidence in this case which tends
in the slightest degree to cast shadow
upon the fairness and equality of this
transaction. If, however, it should ap-
pear from the evidence that COM
modify taken in barter is token at a
price different from that expressed in
the written agreement of exchange, the
different price may be shown, when in q
case like this, it becomes material in
order to fix the measure of damages
for breach of the contract. II
in the case at bar, it appeared
from the evidence that the property
was received by defendant as the frs
payment, at an agreed price less thar
that acknowledged, this would be th'
true measure Of damages which thu
other contracting party might recover
Such, however, is not the caae. Their
is no evidence OF any other valuation
fixed upon the property taken than thai
acknowledged in the contract, ant
hence this, and not the actual value Il
be fixed by retrospective estimation
must govern.
Plaintiff is therefore entitled to judg
ment for the amount of the payment &C
knowledged in the contract and interes
from the date of recision, and it is 90 OF
dered.
Plaintiff will prepare and submit find
ipgs in accordance herewith, unles
findings are expressly waived.
Tucker Acquitted.
Louis @. Tucker was tried befor
Judge Smith and jury yesterday upol
Fell Dead.
These words are very familiar to our resderl
a. not day passes without the report OF th
udSsn death S Of aesr
haware IL Won have any of the following SYM