Cummings v. Howard

63 Cal. 503, 1883 Cal. LEXIS 515

• Court: California Supreme Court
• Decided: June 15, 1883
• Status: Published

Opinion

Per Curiam.

To sustain thejudgment—there being no written findings—all the facts alleged in the complaint will be presumed to have been found by the Superior Court. It is alleged plaintiff made a deed of conveyance of the lands described, to defendant; that when the conveyance was made “doubts existed as to the entire validity of the title, on account” of the pendency of two actions against the property; that the defendant agreed to pay the balance of the purchase money if plaintiff succeeded in defeating the two actions, and in making a clear title; that plaintiff succeeded in defeating both said actions, recovering final judgment in one July 28, 1873, and the other March 22, 1875. The averment that “the defendant paid a small amount of money down, and further promised and agreed in writing to pay seven hundred and fifty dollars, if he, plaintiff, succeeded in defeating” the two actions, is, in the absence of demurrer, good as an averment that defendant promised to pay the seven hundred and fifty dollars when plaintiff succeeded, etc.

The balance became due when final judgment was entered in the one of the two actions last determined. No special demand was necessary prior to the commencement of the present suit.

Plaintiff was entitled to recover interest at the rate of ten per cent per annum during the period of time the statute imposed ten per centum.

The legislature has power to impose on past indebtedness a rate of interest, or (in the absence of a specific contract as to interest) to increase the legal rate. Such a statute operates only on future rights. (Dunne v. Mastick, 50 Cal. 247.) A fresh demand and refusal would be a new assertion of a right, and would impose a new liability. So, in legal effect, is a neglect without a demand. (Bullock v. Boyd, 1 Hoff. Ch. 294.)

Judgment affirmed.