Smith v. Compton
California Supreme Court
Appeal from the Superior Court of the City of San Francisco. The plaintiff brought his action on a tripartite agreement (not under seal) dated Nov. 22, 1853, between Wm. A. Richardson of the first part, Chas. S. Compton and D. Davidson (the defendants) of the second part, and Wm.
Read the full summary
Appeal from the Superior Court of the City of San Francisco. The plaintiff brought his action on a tripartite agreement (not under seal) dated Nov. 22, 1853, between Wm. A. Richardson of the first part, Chas. S. Compton and D. Davidson (the defendants) of the second part, and Wm. Smith (the plaintiff) of the third part; which recites that Smith had recovered a judgment for §3,913, besides costs, the whole bearing interest, against Richardson, under which he had levied on property of Richardson in Marin County; and contains the following agreements : Richardson agrees that the interest shall…
1Opinion of the CourtJustice Terry
Mr. Justice Heydenfeldt concurred.
The promise on the part of plaintiff to stay proceedings under his judgment against Richardson, was a condition precedent to the guaranty sued on, and performance on his part should have been alleged and proven, to entitle him to recover against defendants.
This was not done in the opening, and defendant was entitled to a judgment of non-suit.
The defendant, however, after his motion was denied, introduced evidence which enabled plaintiff to supply the defect in his case, and by so doing, waived the objection. See Ringold v. Haven, 1 Cal. Rep., 108.
From the…
2Cases cited1 opinion
- Ringgold v. Haven & LivingstonCalifornia Supreme Court · 1850
3Cited by14 opinions
- In Re the Estate of ThomsonCalifornia Supreme Court · 1913
- Barton v. KaneWisconsin Supreme Court · 1863
- Vaca Valley & Clear Lake Railroad v. MansfieldCalifornia Supreme Court · 1890
- Perkins v. ThornburghCalifornia Supreme Court · 1858
- Wine Packing Corp. of Cal. v. VossCalifornia Court of Appeal · 1940
9 more not listed; retrieve them via the Exa API.