Kinkead v. Shreve

17 Cal. 275

Opinion

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

Suit on a bond for $1000, conditioned that if the obligor “ shall, on or before the fifteenth day of April, 1859, make, execute and deliver to obligees a quit claim, good and sufficient deed” to certain premises, “ provided, that on or before the fifteenth day of April, 1859, obligees do well and faithfully pay to B. Shreve, or order, certain promissory notes,” etc. Plaintiffs aver demand for the deed and refusal: but the finding is that no demand was made. The judgment of the Court was in favor of defendant. One of the questions in the case, and which is decisive of it, is, whether it was necessary to prove a demand by the obligees of this bond upon the obligor to make the deed according to the agreement.

The weight of authority is that a demand must be made. (11 Ala. 840; 3 Wend. 250; 6 Cow. 13; 1 Denio, 546; 7 S. & M. 217; 2 Edw. 78; 5 Cal. 341.)

Judgment affirmed.