Englander v. Rogers

41 Cal. 420

• Court: California Supreme Court
• Decided: July 1, 1871
• Docket: No. 2,231
• Status: Published

Opinion

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 plaintiff' to maintain the action on the contract set out in the complaint, he should have averred a tender of the unpaid portion of the purchase money, or some sufficient excuse for the omission to tender it. The only allegation of the complaint on this point is that the plaintiff' “ has been ready and willing during all the time aforesaid, and has offered to accept and take said conveyance, pursuant to said agreement, and to pay the balance of said purchase money.” This is not an averment that he tendered the purchase money. To constitute a valid tender in such a ease, the party must have the money at hand, immediately under his control, and must then and there not only be ready and willing, but produce and offer to pay it to the other party, on the performance by him of the requisite condition. '(15 Wend. 637; 6 id. 22, n. a. 35; Strong v. Blake, 46 Barb. 227.) There is in this complaint no sufficient averment of a tender, nor of any excuse for the omission, and the demurrer ought to have been sustained on this ground.

Judgment reversed and cause remanded, with an order to the Court below to sustain the demurrer to the complaint.