Englander v. Rogers
California Supreme Court
Appeal from ‘the District Court of the Fourth Judicial District, City and County of San Francisco. The complaint alleges that the plaintiff, om the 9th of May, 1867, entered into an agreement with the defendant to purchase from him a lot of land in San Francisco, for two thousand two hundred dollars, and paid him four hundred and eighty-one dollars and eighty-five cents as part of the purchase money, to be retained by the defendant if he should convey a good title to the…
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Appeal from ‘the District Court of the Fourth Judicial District, City and County of San Francisco. The complaint alleges that the plaintiff, om the 9th of May, 1867, entered into an agreement with the defendant to purchase from him a lot of land in San Francisco, for two thousand two hundred dollars, and paid him four hundred and eighty-one dollars and eighty-five cents as part of the purchase money, to be retained by the defendant if he should convey a good title to the plaintiff, but to be returned if the defendant should fail to make such a conveyance; that the defendant failed to convey…
1Opinion of the Court
By the Court, Crockett, J.:
The demurrer to the complaint ought to have been sustained. On the facts averred in the complaint, the payment of the remainder of the purchase money by the plaintiff, and the execution and delivery of a proper deed of conveyance by the' defendant, were concurrent acts, to be simultaneously performed. The covenants of the vendor and vendee were mutual and dependent, and neither could put the other in default, except by tendering a performance on his own part, unless the other party either waived the tender, or, by his conduct, rendered it unnecessary. To entitle the…
2Cases cited2 opinions
- Bakeman v. PoolerNew York Supreme Court · 1836
- Strong v. BlakeNew York Supreme Court · 1865
3Cited by22 opinions
- Hicks v. LovellCalifornia Supreme Court · 1883
- Naftzger v. GreggCalifornia Supreme Court · 1893
- Phelps v. BrownCalifornia Supreme Court · 1892
- Newton v. HullCalifornia Supreme Court · 1891
- Malmberg v. BaughUtah Supreme Court · 1923
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