Belcher, C.
This action was commenced on the nineteenth day of April, 1889, to recover the sum of one thousand dollars, with' interest thereon, alleged to be due [493]*493from defendant to plaintiff under a contract for the sale of land.
It is alleged in the complaint that on the sixth day of September, 1887, the plaintiff and defendant entered into a written agreement, a copy of which is set out in full, whereby the plaintiff, as party of the first part, agreed to sell and convey to the defendant, as party of the second part, and the latter to buy, a certain described parcel of land for the sum of two thousand two hundred dollars, to be paid as follows: Seven hundred dollars cash, the receipt of which was acknowledged, five hundred dollars on January 1, 1888, and the balance of one thousand dollars on May 1,1888, with interest at eight per cent.
It is further alleged that the first two payments were made, and that the sum of one thousand dollars, with interest, “became due, according to the terms of said contract, on the first day of May, 1888, no part of which has been paid by defendant, although often requested so to do; that plaintiff has duly ¡oerformed all of the conditions of said contract to be performed by him to this time, and has been constantly, and now is, ready and willing, and prior to the institution of the suit offered, to execute and deliver to defendant a deed of said premises, together with a certificate of title, upon compliance by defendant with the terms of said contract as therein set forth, but defendant said he would not accept a deed, and refused to pay said money.”
The agreement set out contains this provision: “Itis further agreed that time is of the essence of this contract; and in the event of a failure to comply with the terms hereof by said party of the second part, the said party of the first part shall be released from all obligations in law or equity to convey said property, and said party of the second part shall forfeit all right thereto, and to moneys theretofore paid under this contract, and all his interest in or to said moneys or said property [494]*494shall thereupon immediately cease as fully as if said moneys had never been paid or this agreement entered into. And the said party of the first part, on receiving such payment at the time and in the manner above mentioned, agrees to execute and deliver to the said party of the second part, or to his assigns, a good and sufficient deed, with certificate of title.”
The defendant, by his answer, denied that “plaintiff and defendant entered into the written agreement, a copy of which is set out in the complaint,” admitted that he signed it, and averred “that his signature thereto was obtained by false and fraudulent representations of the said plaintiff, made by and through his agents employed by him for the sale of said premises in said contract described.” He then states that he was solicited by one C. J. Longstreet to purchase the property, and declined to do so; that Longstreet and D. G. White,- his partner in the real estate agency business, informed him that they had contracted to purchase the property in his, defendant’s, name, and had paid on account of the purchase price a sum of money which they claimed to have advanced for him; that he then and there refused to confirm the purchase or to take the property, whereupon they produced the written contract, a copy of which is set out in the complaint, and which had then been signed by the plaintiff, and insisted that he should execute it and become the purchaser of the property, and that he positively refused to make the purchase or sign the contract; that upon such refusal they informed the agent of plaintiff for the sale of the property that defendant refused to sign the contract, and offered to return the same to the agent and cancel it, and demanded ‘a return .of the money paid by them on account thereof, but the agent refused to receive or cancel the contract or to repay the money; that thereupon it was agreed between them that White should become the purchaser, procure the signature of defendant to the contract, and [495]*495take an assignment thereof, and pay the balance of the purchase price; that Longstreet and White informed defendant of this agreement, and requested him to attach his signature to an assignment indorsed on .the contract to White, and that he at first refused, but finally did it upon their assurance that it was a mere matter of form, and that he would incur no liability thereunder; that subsequently, upon like request and assurance, he signed the contract; that the plaintiff thereafter received the contract, and the first and second payments therein provided for, with full knowledge and notice that White was the purchaser of the property, and the real party in interest as the vendee thereof; and that the plaintiff did not at any time call upon defendant for any money or to comply with any of the terms of the contract, until after White had made default in the last payment, and that defendant never did make any payment for or on account of the said purchase, or furnish any money therefor.
The case was tried, and the findings of the court were as follows: 1. That on the sixth day of September, 1887, the plaintiff, being the owner of the parcel of land described, “ entered into an agreement in writing with the defendant, G. F. Mohn, Sen., whereby the plaintiff agreed to sell and the defendant agreed to buy said land upon the terms and conditions set forth in plaintiff’s complaint and the exhibit marked ‘Plaintiff's Exhibit No. 2’”; 2. That Longstreet and White were not the agents of plaintiff, or employed by him for the sale of the said premises; 3. That the signature of the defendant to the said agreement of purchase and sale was not obtained by false and fraudulent representations of the plaintiff, made by and through his agents; 4. That plaintiff did not accept and receive the contract, or the first and second payments thereon, with the knowledge and notice that White was the purchaser óf the property, or the real party in interest as' the vendee thereof; 5. That the [496]*496plaintiff, prior to the institution of this suit, offered to execute and deliver to defendant a deed of the premises, together with a certificate of title, and demanded of him the balance due on the contract, but defendant declined to accept the deed, and refused to pay the money; 6. That there is now due the plaintiff upon said contract the sum of $1,167, principal and interest.
The court gave judgment for the plaintiff for the amount found due, with costs, and the defendant appealed.
It is contended for appellant that the findings were defective and insufficient in several particulars.
Í. It is claimed that there was no sufficient finding that defendant ever executed the contract set forth in the complaint, or as to what were the terms and conditions upon which the sale was made. This position is rested upon the last clause of the first finding, that the parties entered into an agreement to sell and buy the land upon the terms and conditions set forth in the complaint, and the exhibit marked “Plaintiff’s Exhibit No. 2.” It is said that this exhibit is not made a part of the pleadings, findings, or record,,and is not referred to, except in this manner. But the contract of sale was set out in hsec verba in the complaint. The defendant admitted that he signed that contract, and only alleged, in substance, that he did not execute it in a legal sense, for the reason that his signature was obtained by fraud.
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Belcher, C.
This action was commenced on the nineteenth day of April, 1889, to recover the sum of one thousand dollars, with' interest thereon, alleged to be due [493]*493from defendant to plaintiff under a contract for the sale of land.
It is alleged in the complaint that on the sixth day of September, 1887, the plaintiff and defendant entered into a written agreement, a copy of which is set out in full, whereby the plaintiff, as party of the first part, agreed to sell and convey to the defendant, as party of the second part, and the latter to buy, a certain described parcel of land for the sum of two thousand two hundred dollars, to be paid as follows: Seven hundred dollars cash, the receipt of which was acknowledged, five hundred dollars on January 1, 1888, and the balance of one thousand dollars on May 1,1888, with interest at eight per cent.
It is further alleged that the first two payments were made, and that the sum of one thousand dollars, with interest, “became due, according to the terms of said contract, on the first day of May, 1888, no part of which has been paid by defendant, although often requested so to do; that plaintiff has duly ¡oerformed all of the conditions of said contract to be performed by him to this time, and has been constantly, and now is, ready and willing, and prior to the institution of the suit offered, to execute and deliver to defendant a deed of said premises, together with a certificate of title, upon compliance by defendant with the terms of said contract as therein set forth, but defendant said he would not accept a deed, and refused to pay said money.”
The agreement set out contains this provision: “Itis further agreed that time is of the essence of this contract; and in the event of a failure to comply with the terms hereof by said party of the second part, the said party of the first part shall be released from all obligations in law or equity to convey said property, and said party of the second part shall forfeit all right thereto, and to moneys theretofore paid under this contract, and all his interest in or to said moneys or said property [494]*494shall thereupon immediately cease as fully as if said moneys had never been paid or this agreement entered into. And the said party of the first part, on receiving such payment at the time and in the manner above mentioned, agrees to execute and deliver to the said party of the second part, or to his assigns, a good and sufficient deed, with certificate of title.”
The defendant, by his answer, denied that “plaintiff and defendant entered into the written agreement, a copy of which is set out in the complaint,” admitted that he signed it, and averred “that his signature thereto was obtained by false and fraudulent representations of the said plaintiff, made by and through his agents employed by him for the sale of said premises in said contract described.” He then states that he was solicited by one C. J. Longstreet to purchase the property, and declined to do so; that Longstreet and D. G. White,- his partner in the real estate agency business, informed him that they had contracted to purchase the property in his, defendant’s, name, and had paid on account of the purchase price a sum of money which they claimed to have advanced for him; that he then and there refused to confirm the purchase or to take the property, whereupon they produced the written contract, a copy of which is set out in the complaint, and which had then been signed by the plaintiff, and insisted that he should execute it and become the purchaser of the property, and that he positively refused to make the purchase or sign the contract; that upon such refusal they informed the agent of plaintiff for the sale of the property that defendant refused to sign the contract, and offered to return the same to the agent and cancel it, and demanded ‘a return .of the money paid by them on account thereof, but the agent refused to receive or cancel the contract or to repay the money; that thereupon it was agreed between them that White should become the purchaser, procure the signature of defendant to the contract, and [495]*495take an assignment thereof, and pay the balance of the purchase price; that Longstreet and White informed defendant of this agreement, and requested him to attach his signature to an assignment indorsed on .the contract to White, and that he at first refused, but finally did it upon their assurance that it was a mere matter of form, and that he would incur no liability thereunder; that subsequently, upon like request and assurance, he signed the contract; that the plaintiff thereafter received the contract, and the first and second payments therein provided for, with full knowledge and notice that White was the purchaser of the property, and the real party in interest as the vendee thereof; and that the plaintiff did not at any time call upon defendant for any money or to comply with any of the terms of the contract, until after White had made default in the last payment, and that defendant never did make any payment for or on account of the said purchase, or furnish any money therefor.
The case was tried, and the findings of the court were as follows: 1. That on the sixth day of September, 1887, the plaintiff, being the owner of the parcel of land described, “ entered into an agreement in writing with the defendant, G. F. Mohn, Sen., whereby the plaintiff agreed to sell and the defendant agreed to buy said land upon the terms and conditions set forth in plaintiff’s complaint and the exhibit marked ‘Plaintiff's Exhibit No. 2’”; 2. That Longstreet and White were not the agents of plaintiff, or employed by him for the sale of the said premises; 3. That the signature of the defendant to the said agreement of purchase and sale was not obtained by false and fraudulent representations of the plaintiff, made by and through his agents; 4. That plaintiff did not accept and receive the contract, or the first and second payments thereon, with the knowledge and notice that White was the purchaser óf the property, or the real party in interest as' the vendee thereof; 5. That the [496]*496plaintiff, prior to the institution of this suit, offered to execute and deliver to defendant a deed of the premises, together with a certificate of title, and demanded of him the balance due on the contract, but defendant declined to accept the deed, and refused to pay the money; 6. That there is now due the plaintiff upon said contract the sum of $1,167, principal and interest.
The court gave judgment for the plaintiff for the amount found due, with costs, and the defendant appealed.
It is contended for appellant that the findings were defective and insufficient in several particulars.
Í. It is claimed that there was no sufficient finding that defendant ever executed the contract set forth in the complaint, or as to what were the terms and conditions upon which the sale was made. This position is rested upon the last clause of the first finding, that the parties entered into an agreement to sell and buy the land upon the terms and conditions set forth in the complaint, and the exhibit marked “Plaintiff’s Exhibit No. 2.” It is said that this exhibit is not made a part of the pleadings, findings, or record,,and is not referred to, except in this manner. But the contract of sale was set out in hsec verba in the complaint. The defendant admitted that he signed that contract, and only alleged, in substance, that he did not execute it in a legal sense, for the reason that his signature was obtained by fraud. There is no question, therefore, as to what were the terms and conditions of the contract which the defendant signed, and ©n which the plaintiff relied for a recovery. The only question, then, is, Was the defendant bound by the contract?- or not bound by it, because of the alleged frauds? The words “ and the exhibit marked ‘Plaintiff’s Exhibit No. 2,’” may be rejected as surplus-age, as the finding is complete without them. It may be remarked, in this connection, that the evidence is not brought up in the record, and we are not advised as to [497]*497what was introduced, but, if need be, we might assume that plaintiff offered his contract and it was received and marked as his “Exhibit No. 2.”
It is next objected that the court found only the amount “due the plaintiff upon said contract,” and not that the sum named was due from defendant. But as the plaintiff and defendant were the only parties who signed the contract, it must follow as a necessary inference, in view of the other findings, that if anything was due the plaintiff it was due from the defendant. We think therefore that this finding was sufficient.
It is further objected that the findings as to the affirmative matters set up in the answer were not sufficient. The substance of these matters is: 1. That defendant’s signature to the contract was obtained by fraud, consisting of false and fraudulent representations, etc.; 2. That White was the purchaser and the real party in interest, and was so accepted and regarded by the plaintiff.
It is true that findings should respond to and cover all of the material issues raised by the pleadings, but they should be statements only of the ultimate facts, and not of the probative facts. (Mathews v. Kinsell, 41 Cal. 512.) In this case we think the findings did meet and negative all the ultimate facts affirmatively alleged in the answer, and that they should be held sufficient.
It is also contended that, under the rule that pleadings are to be construed most strongly against the pleader, the averment in the complaint that plaintiff, “prior to the institution of this suit, offered to execute and deliver to defendant a deed of said premises, together with a certificate of title, upon compliance,” etc., must be construed as relating to a time immediately preceding the institution of the suit; that the offer of a deed and demand of payment were therefore not made until nearly eleven months after the money sued for became due and payable; and that plaintiff, by his neglect to fender'the deed and demand payment when the money [498]*498became due, had lost all right to sue for and recover the money under the express provisions of the contract. The provisions of the contract relied upon as effecting tliis result are those above quoted.
It will be observed that it is also averred in the complaint “that plaintiff has duly performed all of the conditions of said contract to be performed by him to this time.” This was a sufficient averment of the performance of conditions precedent (Code Civ. Proc., sec. 457), and it is not denied by the answer. This being so, how can it be said that plaintiff was in default, and thereby lost his rights?
But however this may be, it should be noticed that the substance of the provisions relied upon is, “ that time is of the essence of the contract; and if defendant shall fail to comply with its terms, then the plaintiff shall be released from all obligations to convey the property, and defendant shall forfeit all right thereto and to the moneys paid, and all his interest in or to the said moneys and property shall immediately cease as fully as if the moneys had never been paid or the agreément entered into.”
In this there is no provision that the plaintiff shall forfeit his rights if the money is not paid on time; and in Wilcoxson v. Stitt, 65 Cal. 596, 52 Am. Rep. 310, where a similar contract was under review, it was held that the failure of the vendee to make the payments provided for did not make the contract void, so far as the vefidor was concerned, but that he had the option to avoid or enforce the contract, and might, if he elected to do so, sue for and recover the balance of the purchase-money.
That case seems to be decisive of this; and as (he above are all the points made for a reversal, we advise that the judgment be affirmed.
Vanclief, C., and Hayne, C., concurred.
The Court. — For the reasons given in the foregoing opinion, the judgment is affirmed.