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synonym of an abandonment of the contract by the party refusing to longer be bound by its terms.-Pearson v. Brown, 27 Cal. App. 125, 148 Pac. 956.

2. It is not necessary for such a party to use the word "rescind" in order to accomplish what the cases intend by the use of that term; any appropriate words, or any definite acts, by which the vendor indicates that he will not proceed further with the fulfillment of the contract, and that he will not permit the vendees to proceed further with the performance of their obligations on their part to be performed, will be taken to amount to a rescission or an abandonment of the contract so far as the vendor is concerned, and will be held to entitle the vendee not in default to his choice of remedies for the breach of the contract on the vendor's part, in the exercise of which he can either stand upon the contract and insist in a court of equity upon its specific performance, or he can accept the vendor's attempted repudiation and abandonment of the contract, and, treating it as thus rescinded, sue for the return of the money paid.-Pearson v. Brown, 27 Cal. App. 125, 148 Pac. 956.

§ 1689.

WHEN PARTY MAY RESCIND CONTRACT. 1-8. As to right generally. 9, 10.

Waiver of right to rescind (subd. 1).

11. Abandonment and release of parties (subd. 5).

12-14. Mistakes or misrepresentations (subd. 1).

15, 16. Partial failure of consideration (subd. 2).

1. As to right generally. The right to rescind a contract for the exchange of lands and personal property, on the ground of delay in carrying the contract into effect, is not affected by the fact that there is an agreement to make a small payment in the case of the personalty.-Rector v. Lewis, 172 Cal. 1, 155 Pac. 75.

2. Where the assignee of a contract for the doing of certain printing work fails to perform within the time specified, and notice of rescission is given, the rescinding party is not answerable to the assignee for any compensation agreed to be made for work under a second contract made with the assignor of the first contract which has been duly performed.-De Galler v. Maier Brewing Co., 26 Cal. App. 436, 147 Pac. 222.

3. A vendee under a contract for the sale and delivery to him of a new touring car, in consideration of his delivery to the vendor of a runabout car, the payment of a sum of money, and the giving of his promissory note, is not deprived of his right to rescind the contract upon discovery that the car received by him was not a new but a secondhand car, because of the fact that the vendor had resold the runabout car, and therefore could not restore it to the vendee.-United Motor San Francisco Co. v. Callander, 30 Cal. App. 41, 157 Pac. 561.

4. The defendant in such action is not

precluded from asserting his right to rescind on the ground that he exercised acts of ownership over the automobile inconsistent with his claim that he was holding it subject to the plaintiff's order, where such acts consisted in taking off the wheels and detaching some parts of the car and bringing them into court as exhibits at the trial, while the car was in the custody of the sheriff under attachment, where it is not shown that the car was injured or its value impaired by temporarily removing such parts, or that the defendant was prevented thereby from delivering the car to the plaintiff as the court directed on compliance by plaintiff on its part with the judgment of the court.-United Motor San Francisco Co. v. Callander, 30 Cal. App. 41, 157 Pac. 561. 5.

Neither at law nor in equity is a contracting party excused from performing his contract within the time agreed upon, further than that in certain contracts failure to perform strictly according to contract, as to time, does not authorize the other party to rescind.-Mettler v. Vance, 30 Cal. App. 499, 158 Pac. 1044.

6. The purchaser of an automobile under a contract of sale calling for its delivery within thirty days from date, upon a breach by the vendor, is entitled to rescind the contract, and to maintain an action for the return of the car taken as part payment, and for recovery of the amount paid on account of the purchase price. Mettler v. Vance, 30 Cal. App. 499, 158 Pac. 1044.

7. Under such a contract the question whether or not time is of the essence is unimportant, for neither at law nor in equity is a contracting party excused from performing his contract within the time agreed upon, further than that in certain contracts failure to perform strictly according to contract, as to time, does not authorize the other party to rescind.-Mettler v. Vance, 30 Cal. App. 499, 158 Pac. 1044.

8. Under such a contract the right to rescind depends not upon the question as to whether or not time was mentioned in the contract as being the essence thereof, but whether defendant's failure to perform the contract was a breach of the substantial part thereof for which damages would be an inadequate compensation.-Mettler v. Vance, 30 Cal. App. 499, 158 Pac. 1044.

9. -Waiver of right to rescind (subd. 1). -Where one has a right to rescind, and with knowledge thereof continues to accept from the other party payments due under the contract, the right to rescind is thereby barred.-Estate of Warner, 168 Cal. 771, 145 Pac. 504.

10. Where parties, after becoming aware of frauds which have been perpetrated upon them in the execution of a contract, suggest, if they do not demand, a rescission, which is met by refusal, and thereafter they enter into a new and modified agreement covering the subject-matter of the first contract, the new agreement thus entered into, with knowledge of the impositions practiced, constitutes a waiver of the fraud.-Brown v.

Domestic Utilities Mfg. Co., 172 Cal. 733, 159 Pac. 163.

11. Abandonment and release of parties (subd. 5).—A contract can be mutually abandoned by the parties at any stage of their performance and each of the parties released from any further obligation on account thereof; such abandonment may be by parol, and the fact of its having been done established by evidence of the acts and declarations of the parties.-Tompkins v. Davidow, 27 Cal. App. 327, 149 Pac. 788.

12. Mistakes or misrepresentations (subd. 1). Where there is no relation of trust or confidence between the parties, misrepresentations of law do not amount to fraud and will not furnish a ground for the rescission of a contract.-Haviland v. Southern California Edison Co., 172 Cal. 601, 158 Pac.

328.

13. Where the vendors and the vendee under such a contract enter into compromise agreement based upon the mutual belief that the former had the absolute right to declare a forfeiture of the contract because the final payment of the purchase money was not timely made, the vendee, upon discovery of the mistake, is entitled to rescind the agreement.-Butte Creek Consol. Dredging Co. v. Olney, 173 Cal. 697, 161 Pac. 260.

14. To entitle the buyer to rescind, it is immaterial whether the seller knew the falsity of his representations or intended to commit a fraud in making them.-Pepper v. Vedova, 26 Cal. App. 406, 147 Pac. 105.

15. Partial failure of consideration (subd. 2). Where a corporation agrees in consideration of the purchase of shares of its stock to employ the purchaser at a stated salary, an unwarranted breach by the corporation in discharging the purchaser without cause entitles the latter to rescind the contract for the purchase of the stock, there being a partial failure of consideration in a substantial part.-Brown v. National Electric Works, 168 Cal. 336, 143 Pac. 606.

16. In an action for damages for breach of a written contract, the plaintiff can not contend that the defendant is not entitled to defend upon the theory that the three instruments involved constitute but a single contract, and that a breach of one constituted a failure of consideration which would entitle the defendant to rescind the entire contract. The remedy given for the reformation of a contract is not exclusive in such a case.-Torrey v. Shea, 29 Cal. App. 313, 155 Pac. 820.

§ 1691.

METHOD OF RESCISSION. 1-6. Must act promptly (subd. 1).

7, 8. Must put other party in statu quo (subd. 2).

1. Must act promptly (subd. 1).—One seeking to rescind a contract must exercise the right promptly upon discovering the facts which entitle him to rescind.-Woodard v. Glenwood Lumber Co., 171 Cal. 513, 153 Pac. 951.

2. While the plaintiff, seeking to rescind a contract, is bound to exercise his right promptly, the defendant can not rely upon delays which have been the result of an indulgence extended to him by the plaintiff. Woodard v. Glenwood Lumber Co., 171 Cal. 513, 153 Pac. 951.

3. The failure to act promptly upon the discovery of fraud is fatal to an action to enforce rescission.-Brown v. Domestic Utilities Mfg. Co., 172 Cal. 733, 159 Pac. 163. 4.

While it is true that where a rescission in pais, under section 1691 of the Civil Code, is relied on, the party rescinding need not show that he has restored that which is worthless, yet he must always show that he has complied with the requirement to rescind promptly, and this implies some notice to the other party of such determination to extinguish the contract.-Brown v. Domestic Utilities Mfg. Co., 172 Cal. 733, 159 Pac. 163. 5. In an action to rescind a contract for the purchase of certain washing-machines and to compel a reconveyance of certain equities in real property given in part consideration for the contract, upon the ground of alleged fraud practiced upon the plaintiffs, where it appears from the pleadings and the evidence that there was an inexcusable delay of twelve months after the discovery of the alleged fraud before attempt was made to rescind, the delay is fatal to plaintiffs' case, in the absence of pleading of proof that the delay was caused by undue influence exercised by defendants over plainwas tiffs, and that there no relation of confidence between the parties.-Brown v. Domestic Utilities Mfg. Co., 172 Cal. 733, 159 Pac. 163.

6. The provision that the rescission must be made "promptly upon discovering the facts" is mandatory as to the promptitude required, except as to the cases herein enumerated (duress, undue influence, or disability, and the party is aware of his right to rescind) and others where a sufficient showing is made in excuse of the delay.United Motor S. F. Co. v. Callander, 30 Cal. App. 41, 157 Pac. 561. 7.

Must put other party in statu quo.— The plaintiff can not avoid its duty to restore to the defendant what it has received by creating its disability to do so. In such case it must make good in damages the value of the part of the property it received and can not restore, and this it may be required to do in the action for rescission.United Motor S. F. Co. v. Callander, 30 Cal. App. 41, 157 Pac. 561.

8. Conceding that before one party can rescind he must place the other in statu quo, such rule has no application here, since plaintiff, under the terms of the contract, had received nothing whatsoever from defendants.-Mettler v. Vance, 30 Cal. App. 499, 158 Pac. 1044.

§ 1698.

1. Modification of contract-Construction of section.-A mere promise to obtain money and thereupon hold it in trust does not

create a trust until it is at least so far executed that the money has been obtained in accordance with the promise. Considered in that light the agreement between the payer and payee of the note in question was ineffectual to alter or extinguish the note, since it was an attempt to alter a written agreement by an unexecuted parol agreement.— Molera v. Cooper, 173 Cal. 259, 160 Pac. 231. 2. The assignment under these circumstances is not rendered invalid under the terms of section 1698, Civil Code, providing that "a contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise.”—Gribling v. Bohan, 26 Cal. App. 771, 148 Pac. 530.

§ 1714.

NEGLIGENCE-WILFUL ACT OF.

1-5. Acts constituting.

6. Extent of proof of.

7. 8. Instructions.

1.

Acts constituting.—It is not negligence per se for a passenger on a street-car to go upon the platform or steps while the car is still in motion preparatory to getting off.Froeming v. Stockton Elec. R. Co., 171 Cal. 401, 153 Pac. 712.

2. There are three elements necessary to sustain an action for personal injuries: The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; a failure by the defendant to perform that duty; and, an injury to the plaintiff from such failure of the defendant. When these elements are brought together, they unitedly constitute actionable negligence.

the former was not only to provide the trestles, but to take care of the shifting thereof, notwithstanding the persons whose negligence caused the injuries were, as to such owner, independent contractors.-Gordon v. Roberts, 30 Cal. App. 76, 157 Pac. 15.

5. Where goods are accepted for shipment, but the vessel not being ready to receive the shipment, the goods are stored in a government warehouse, where they are subsequently destroyed, the carrier is liable for their loss. Canadian Pac. R. Co. v. Wieland, 226 Fed. 670.

6. Extent of proof of.-In an action for damages on account of personal injuries sustained while being conveyed in a passenger elevator owned and operated by the defendant, it is only necessary for the plaintiff to prove, in order to make out a case, presumptively showing negligence on the part of the defendant, that he was injured by the rapid descent and sudden stopping of the elevator, and that the elevator was under the control and management of the defendant.-Worden v. Central Fireproof Building Co., 172 Cal. 94, 155 Pac. 839.

7. Instructions. - An instruction that "when it is shown that the injury to the passenger was caused by the act of the carrier in operating the instrumentalities employed in its business, there is a presumption of negligence which throws upon the carrier the burden of showing that the injury was sustained without any negligence on its part. It is for you to determine whether or not a passenger is guilty of contributory negligence in going upon the platform of a the steps thereof preparatory to alighting therefrom when the car stops, and that contributory negligence on the part of a passenger can not be presumed from the mere fact of injury, but must be proved, and the burden of proving contributory negligence on the part of the injured person is cast upon the defendant," fully embraces the la w. Froeming v. Stockton Elec. R. Co., 171 Cal. 401, 153 Pac. 712.

or

car The absence of any

one of these elements renders a complaint bad, or the evidence insufficient.-Fallon v. United Railroads, 28 Cal. App. 60, 151 Pac. 290.

3. Negligence is a relative term, depending upon inferences to be drawn from many facts and circumstances which it is the province of the jury to draw in each particular case; it seldom happens that the question is so clear from doubt that the court can undertake to say, as matter of law, that the jury could not fairly and honestly find for the plaintiff, and when they so find upon facts as to which reasonable minds might differ in the conclusion reached, their decision is not subject to review on appeal.Cooley v. Brunswig Drug Co., 30 Cal. App. 58, 157 Pac. 13.

8. An instruction to the jury that "it is the duty of a street railway company to afford a reasonable time for its passengers to alight from its cars at the place where the car stops for that purpose, and if a passenger is injured without fault on his part, while on the steps of a car slowing down for the purpose of enabling passengers to alight, preparatory to alighting when the car has stopped, by reason of a sudden starting of the car, the burden is thrown upon the company to show that the injury was not the result of its own act of negligence," is not objectionable as declaring to the jury "that a passenger has a right to be on the steps of a moving car."-Froeming v. Stock

4. The owner of a building in course of construction is liable for injuries received by a person standing on the sidewalk in front of and several feet distant from the line of the building from the falling upon him of a painter's trestle, during the moving thereof, where, under the terms of the contract between the owner and the painter, ton Elec. R. Co., 171 Cal. 401, 153 Pac. 712.

ch.II,arts.I,II,III.]

§ 1731.

PART IV.

OBLIGATIONS ARISING FROM PARTICULAR TRANSACTIONS.

1. Option to buy-Effect of.-Where an agreement gives the lessee of a piece of land an option during the term of the lease to buy the land at a stated price, but does not fix the time for making the deed or declare expressly that the lessor would execute a deed, the exercise of the option makes the agreement one for the sale of land at a fixed price, and the seller is bound to convey title. In the absence of anything to the contrary, the covenants to pay the price and to transfer the property are dependent and a conveyance would be due upon the payment of the price.-Joyce v. Tomasini, 168 Cal. 234, 142 Pac. 67.

§ 1749.

1.

Resale by seller.-A letter from the buyer refusing to accept any more of the eggs is not such a breach of the contract as to require the seller to resell the remainder of the eggs immediately.-Cheda v. Kockos, 28 Cal. App. 374, 152 Pac. 735.

2. The right of resale may be exercised within a reasonable time after default by the buyer, and if the delay is not unreasonable it is not necessary for the resale to be made immediately after the default, although the price of the goods may be on a steady decline. Cheda v. Kockos, 28 Cal. App. 374, 152 Pac. 735.

3. Where under a contract for the purchase and sale of cold storage eggs the buyer, three days prior to the expiration of the time mentioned in the contract within which the eggs were all to be delivered, refuses to accept the portion of the eggs not already delivered, on the ground that they are unmerchantable, and the seller within six days after the expiration of the term proceeds to resell the same, but does not succeed in disposing of them all until two weeks later, the resale is made within a reasonable time after the breach of the contract. Cheda v. Kockos, 28 Cal. App. 374, 152 Pac. 735.

4. The seller of rejected property who seeks to recoup his loss, if any, by a private sale, must resort to such resale in the open market and at market values.-Lund v. Lachman, 29 Cal. App. 31, 154 Pac. 295.

5. The market value of a commodity is the highest price in the market where it is offered for sale which those having the means and inclination to buy are willing to pay for it; and market values are created and controlled by the condition of the market with reference to supply and demand rather than by the particular or peculiar selling ability of the seller.-Lund v. Lachman, 29 Cal. App. 31, 154 Pac. 295.

6. While it is not incumbent upon the seller of wine bottles to make a resale im

mediately after the buyer refuses to accept the bottles, still the seller is required to exercise reasonable diligence in locating the nearest market and ascertaining the prevailing market price for the rejected bottles.Lund v. Lachmap, 29 Cal. App. 31, 154 Pac. 295.

7. Under the common law, there were two different actions growing out of the sale of 1. An action for personal property, to-wit: goods bargained and sold, where the goods had been sold but not delivered, and there had been a complete sale and the property in the commodity sold had become vested in the defendant, there having been an actual acceptance of the same by him. 2. An action for goods sold and delivered, in which case it was requisite to directly allege the delivery as well as the sale of the article.-Johnson v. Dixon Farms Co., 29 Cal. App. 52, 155 Pac. 134.

8. Upon the breach of a contract of sale by the purchaser, the seller is at liberty to fully perform on his part, and when he has done all that is necessary to effect a delivery of the property, so as to pass title to the purchaser, he may store or retain it for the purchaser, or he may resell it as agent for V. E. the purchaser.-Pabst Brewing Co. Clemens Horst Co., 229 Fed. 913.

§ 1753.

1. Delivery within reasonable time.-A delivery of goods within ten or twelve days is within a reasonable time where the contract merely requires delivery on or about a certain date.-Passow & Sons v. Harris, 29 Cal. App. 560, 156 Pac. 997.

2. The vendees under a contract for the purchase of billiard-tables are stopped from asserting that the vendor failed to deliver the tables in time, and that therefore they were justified in refusing to accept them, where the contract failed to provide a specific date for their delivery, but instead that the delivery should be "on or about" a certain date, and the vendees four days after the expiration of such date advised the vendor that they might make delivery at a later date, and made no objection to the delay until the day prior to delivery, when they attempted to rescind the contract.Passow & Sons v. Harris, 29 Cal. App. 560, 156 Pac. 997.

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should be employed, or that any particular or formal words of warranty should be used; any affirmation made at the time of the sale or exchange as to the quality or condition of the thing sold will be treated as a warranty if it was so intended, and if the other party acquired the property on the faith of such affirmation.-Costs v. Hord, 29 Cal. App. 115, 154 Pac. 491.

3. Where both buyer and seller, by reason of their occupation, have expert knowledge of the kinds of goods in question, an expression of the latter at the time of sale that the goods were first class is but the expression of an opinion, or what is termed "puffing," and not an express warranty of quality.-Alexander v. Stone, 29 Cal. App. 488, 156 Pac. 998.

4. While it is true that an express warranty to be available must be alleged in the complaint, this does not mean that in order to create such a warranty the word "warranty" should be employed, or any form of affirmative words of warranty; any affirmation made at the time of the sale, as to the character or condition of the thing sold, will be treated as a warranty if it is so intended, and if the other party acquired the property on the faith of the affirmation. -Morris v. Fiat Motor Sales Co., 32 Cal. App. 315, 162 Pac. 663.

§ 1766.

1. Sale by sample, warranty on.-A sale of goods is not by sample where it is shown that the order therefore was given by the buyer after an examination of the goods and part payment made on the purchase price, and an arrangement entered into fixing the terms of the payment of the balance and of the shipment of the goods, notwithstanding samples of the goods were sent by the sellers, at the request of the buyer, to the firm of which the latter was a member.-Alexander v. Stone, 29 Cal. App. 488, 156 Pac. 998.

§ 1770.

1.

no

Things bought for a particular purpose-Warranty.-A contract which merely warrants that a dredge would move a given quantity of material a given distance under certain defined circumstances implies warranty under this section that the dredge would be capable of dredging the bottom of a particular harbor, even though the parties understood the general purpose for which it was to be used was the doing of such work. United Iron Works v. Outer Harbor D. & W. Co., 168 Cal. 81, 141 Pac. 917.

2. A warranty will be implied where the vendor contracts with the vendee with the full knowledge as to the particular purpose for which the article is to be used.-Lichtenthaler v. Samson Iron Works, 32 Cal. App. 220, 162 Pac. 441.

§ 1771.

1. No examination by buyer-Warranty.Where one has an opportunity to examine the goods there is no implied warranty as

to the quality, even though there was a failure to take advantage of the opportunity for examination.-Alexander v. Stone, 29 Cal. App. 488, 156 Pac. 998.

As to rule on examination by buyer, see post, C. C. pt., § 1785.

§ 1784.

1. Time of payment.—Where one buys personal property at an agreed price, by implication he agrees to pay the price, and if no time of payment is fixed the law makes the time of delivery as the time for payment.-Gilfallan v. Gilfallan, 168 Cal. 23,

141 Pac. 623.

2. Where the contract is silent as to the time of payment the law contemplates that the act of delivery and that of payment shall be concurrent; the seller, however, is not entitled to payment until he delivers "the thing sold," and the buyer is entitled to an inspection before payment, and to repudiate the sale and refuse payment if the article delivered fails to conform to the description of the goods purchased.-Newmark v. Smith, 26 Cal. App. 339, 146 Pac. 1064.

§ 1785.

1. Inspection by buyer.-A seller of a designated quantity of "choice, recleaned, small white beans of the crop of 1911" is not justified in refusing to comply with his contract by reason of the demand of the buyer, upon a tender of delivery, that he be permitted to make an inspection of the beans as a condition precedent to the making of payment.-Newmark v. Smith, 26 Cal. App. 339, 146 Pac. 1064.

As to rule when there can be no inspection by buyer, see ante, C. C. pt., § 1771.

2. Unless otherwise agreed, when the seller tenders delivery of goods to the buyer he is bound on request to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.-Newmark v. Smith, 26 Cal. App. 339, 146 Pac. 1064.

3. Where the buyer has an opportunity to examine the goods there is no implied warranty as to the quality, even if the buyer fails to take advantage of the opportunity for examination given him.-Alexander v. Stone, 29 Cal. App. 488, 156 Pac. 998.

§ 1786.

1. Breach of warranty, rescission for.On the sale of a team of farm horses a warranty that they will work together and have no bad habits and are physically sound forms a condition of the contract which, if broken, will warrant rescission.-Pepper v. Vedova, 26 Cal. App. 406, 147 Pac. 105.

2. An action can be brought to rescind an executed contract for the breach of a warranty, where the false representations as to the quality of the property go to the essence of its value, and render it useless,

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