Los Angeles herald., 1892-11-24
A RELIC Of GAY BOOM TIMES.
Judge Clark Decides the Case
of Quill VS.. Jacoby.
The Decision Which Settles an Old
Complicated Controversy.
Five Alleged Chinese Gamblers Con-
victed Yesterday Other Criminal
Cases-New Suits
Filed.

'ductive Of many failures of we'll laid
plans for developing property around
Los Angeles, and many cases have been
tried in the courts to bring order out of
the chaos that ensued. Perhaps none
OF the enterprises thus checked have
been longer in the superior and supreme
courts than those connected with the
Jacoby and Thorn subdivision Of the
Blow tract, close to the river in East
Los Angeles.
The case Of Quill va. Jacoby ct al.
which is one Of these cases, was deter
mined by Judge Clark yesterday, who
handed down the following interesting
opinion, giving judgment for the defend
ants:
On July 13, 1887, the plaintiff and de-
fendants entered into two contracts by
the terms of which the plaintiff agreed
to purchase and the defendants agreed
to sell two certain lots in the Jacoby
and Thorn subdivision OF the Blow
tract, for sums aggregating $500. Pay
ments we're to be made in three install
ments, the last instalment to become
due on July 13, 1888. Both contracts
contained stipulation on the
part of the defendants as fol-
lows, viz: Sand the parties
of the first part hereby bind themselves
to construct and build levee along the
west side of said tract in accordance
with the plans and specifications as fur
nished by The council of the city of Los
Angeles, and if the last payment herein
before provided for shall become due be-
fore said levee has been accepted by the
city as completed, then the last pay
ment above referred to shall be deferred
until said levee has been accepted by
the proper officers of the city of Los An
geles," etc. Plaintiff paid the two first
installments according to the terms of
each contract. On January 6, 1891, no
levee having been built along the west
line of said tract, plaintiff attempted to
rescind said contract, and notified the
defendants by writing signed By his
attorney that he considered said con.
tract at an end and offered to re.transfer
to them all interest that he had in said
lots by reason of said contracts, and de-
manded a return of all money paid by
him Hereunder.
The right to rescind contract is gov
erned by section 1889, Civil Code. 1t
reads: "a party to a contract may re-
scind the same in the following cases
only 2. II, through the fault
OF the party as to whom he rescinds the
consideration for his obligation fails in
whole or in part" In considering this
section the supreme court in Lawrence
vs.. Gayetty, 7S CAL, 1875, where there
was conveyance of real estate, the sole
consideration of which was an agree
ment on the part of the vendee to do
certain things, as to develop q mine,
build mill, etc, held that total nom
performance on the part of the vendee
was not a failure of consideration that
would entitle the vendor to rescind,
there being no fraud, and the perform
ance of the contract on the part of the
yendee not being expressly made con-
dition affecting the validity OF the con-
veyance. That case is cited and relied
upon by the defendants who urge that
if plaintiff has any cause of action, it is
an action for breach of contract, and
that his remedy 8 not rescission. l do
not. however, think that case in point.
Tbere the contract of the plaintiff was
executed, and distinction would seem
to be made by the authorities between
executed and eXecutory contracts, with
respect to the right of resciseion. The
reason (be it good or bad) of this dis
tinction would eeem to be that where
contract is fully executed by one party
thereto, said party thereby valves actual
performance on the part of the other
party and relies upon his mere promise
Of performarce. Were this an executed
contract on the part OF plaintif-had
he made the payments required OF him
and accepted the deed, he would, under
the rule, 80 far as the form of his
remedy is concerned, have been held to
have waived the actual building of the
leyee by defendant, and to have rested
on defendants promise to build it, and
his remedy would have been an action
for damages for the breach of this
promise. Plaintiffs contract, however,
ia still executory. He has waived moth
inc. The consideration of his promise
to nav the money specified in the con-
tract ia the promise of the defendants
not only TO convey the title to the lots,
hut also to build the levee. If, there
fore. the leyee be not built according to
the contract, there'is such part failure
Of the consideration for plaintiffs
promise az would entitle him to rescind
under Civil Code, section 1884, subdivis-
ion 2, supra. But has there been
such failure to build the levee
according to the contract? The
contract prescribed no limitation OF time
for the completion of the levee, and the
law therefore imply promise to build
il within reasonable time. What con-
stitutes a reasonable time must depend
on the facts and circumstances in each
particular case. Here the evidence
shows that the time actually necessary
for the building OF levee along the line
of the "Blow tract would be but few
months. 1t shows, however, that this
tract is situated upon the bank of the
Los Angeles river between Also street
and Seventh street. and is 90 situate
that a levee built on the west line of the
tract won Id afford no protection to the
land from the encroachment OF the river
and would be useless undertaking
unless also built to a point some six or
seven thousand feet up the stream and
along and in front OF land not
belonging to the defendants. 1t
further appears that before the date
of the contract the city council had
adopted the report of it's committee on
East Side levee' recommending that
the city give 50 per foot towards build
ING levee along the east side OF the
river from Also street to Seventh street
said levee to be the same as the railroad
Ievee on the west side of the river, ac-
cordine to the plans and specifications
then on file in the county clerks office
and that thereafter, in the fall of 1887,
r.I.,,t, or1 othar Ovpupra Of land