Pearis v. Covillaud

6 Cal. 617

• Court: California Supreme Court
• Decided: July 1, 1856
• Status: Published

Opinion

The opinion of the Court was delivered by Mr. Chief Justice Murray.

Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.

This was an action in the Court below, to enforce a specific performance of a contract for the sale of lands. The record contains some eight assignments of error, all of which will not require examination.

From a personal inspection of the original, we are satisfied that the note executed by defendants was payable four months after date, and not after sight. From this it would follow, that after the tender of the deed, and the demand and refusal of payment by the plaintiff, he had forfeited his right to insist on a performance of the contract.

From what appears in the record, the defendants were tenants in common, and not partners, and therefore not bound by the act of Covillaud in accepting the balance of the purchase money. See 10 Barbour S. C. Rep., 566; 2 Comstock, 512; 5 Hill, 232. So far as Covillaud was concerned, he might bind his own interest in the land, and if the defendants had been partners, they would have been equally bound by the rule that one partner is the agent for the whole firm, and may in such capacity bind them by his acts; but in the case of lands or a chattel held by several as co-tenants, the rule is different.

In addition to this, we think the cause of action is barred by the Statute of Limitations, and that the facts of the case go far to make out an abandonment of the purchase by the plaintiff.

This view of the case renders it unnecessary to consider the other points of the case.

Judgment affirmed.