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synonym of an abandonment of the contract precluded from asserting his right to reby the party refusing to longer be bound scind on the ground that he exercised acts by its terms.- Pearson v. Brown, 27 Cal. App. of ownership over the automobile inconsis125, 148 Pac. 956.
tent with his claim that he was holding it 2.
It is not necessary for such a party to subject to the plaintiff's order, where such use the word "rescind" in order to accom- acts consisted in taking off the wheels and plish what the cases intend by the use of detaching some parts of the car and bringthat term; any appropriate words, or any ing them into court as exhibits at the trial, definite acts, by which the vendor indicates while the car was in the custody of the that he will not proceed further with the sheriff under attachment, where it is not fulfillment of the contract, and that he will shown that the car was injured or its value not permit the vendees to proceed further impaired by temporarily removing such with the performance of their obligations on parts, or that the defendant was prevented their part to be performed, will be taken thereby from delivering the car to the plainto amount to a rescission or an abandonment tiff as the court directed on compliance by of the contract so far as the vendor is con- plaintiff on its part with the judgment of cerned, and will be held to entitle the vendee the court.-United Motor San Francisco Co. not in default to his choice of remedies for v. Callander, 30 Cal. App. 41, 157 Pac. 561. the breach of the contract on the vendor's 5. Neither at law nor in equity is a conpart, in the exercise of which he can either tracting party excused from performing his stand upon the contract and insist in a court
contract within the time agreed upon, furof equity upon its specific performance, or he ther than that in certain contracts failure can accept the vendor's attempted repudi- to perform strictly according to contract, as ation and abandonment of the contract, and, to time, does not authorize the other party treating it as thus rescinded, sue for the to rescind.—Mettler v. Vance, 30 Cal. App. return of the money paid.--Pearson v. Brown, 499, 158 Pac. 1044. 27 Cal. App. 125, 148 Pac. 956.
6. The purchaser of an automobile under
a contract of sale calling for its delivery 8 1689.
within thirty days from date, upon a breach WHEN PARTY MAY RESCIND CONTRACT. by the vendor, is entitled to rescind the 1-8. As to right generally.
contract, and to maintain an action for the 9, 10. -Waiver of right to rescind (subd.
return of the car taken as part payment, 1).
and for recovery of the amount paid on ac11. Abandonment and release of parties
count of the purchase price. Mettler v. (subd. 5).
Vance, 30 Cal. App. 499, 158 Pac. 1044. 12–14. Mistakes or misrepresentations (subd. 7. Under such a contract the question 1).
whether or not time is of the essence is 15, 16. Partial failure of consideration (subd. unimportant, for neither at law nor in equity 2).
is a contracting party excused from per1. As to right generally.-The right to
forming his contract within the time agreed rescind a contract for the exchange of lands
upon, further than that in certain contracts and personal property, on the ground of
failure to perform strictly according to condelay in carrying the contract into effect, is
tract, as to time, does not authorize the not affected by the fact that there is an
other party to rescind.-Mettler v. Vance, agreement to make a small payment in the
30 Cal. App. 499, 158 Pac. 1044. case of the personalty.-Rector v. Lewis, 172
8. Under such a contract the right to Cal. 1, 155 Pac. 75.
rescind depends not upon the question as to 2. Where the assignee of a contract for
whether or not time was mentioned in the the doing of certain printing work fails
contract as being the essence thereof, but to perform within the time specified, and
whether defendant's failure to perform the notice of rescission is given, the rescinding
contract was a breach of the substantial part party is not answerable to the assignee for
thereof for which damages would be an any compensation agreed to be made for
inadequate compensation.--Mettler v. Vance, work under second contract made with the
30 Cal. App. 499, 158 Pac. 1044. assignor of the first contract which has been
-Waiver of right to rescind (subd. 1). duly performed.—De Galler v. Maier Brew- —Where one has a right to rescind, and with ing Co., 26 Cal. App. 436, 147 Pac. 222.
knowledge thereof continues to accept from 3. A vendee under a contract for the sale the other party payments due under the and delivery to him of a new touring car, contract, the right to rescind is thereby in consideration of his delivery to the vendor barred.-Estate of Warner, 168 Cal. 771, 145 of a runabout car, the payment of a sum of
Pac. 504. money, and the giving of his promissory 10. Where parties, after becoming aware note, is not deprived of his right to rescind of frauds which have been perpetrated upon the contract upon discovery that the car them in the execution of a contract, suggest, received by him was not a new but a second- if they do not demand, a rescission, which is hand car, because of the fact that the vendor met by refusal, and thereafter they enter had resold the runabout car, and therefore into a new and modified agreement covering could not restore it to the vendee.-United the subject-matter of the first contract, the Motor San Francisco Co. v. Callander, 30 Cal. new agreement thus entered into, with App. 41, 157 Pac. 561.
knowledge of the impositions practiced, con4. The defendant in such action is not stitutes a waiver of the fraud.—Brown v. App. 41, 157 Pac. 561. 8 1691.
Domestic Utilities Mfg. Co., 172 Cal. 733, 159 2. While the plaintiff, seeking to rescind Pac. 163.
a contract, is bound to exercise his right 11. Abandonment and release of parties promptly, the defendant can not rely upon (subd. 5).- A contract can be mutually aban- delays which have been the result of an doned by the parties at any stage of their indulgence extended to him by the plainperformance and each of the parties released tiff.--Woodard v. Glenwood Lumber Co., 171 from any further obligation on account Cal. 513, 153 Pac. 951. thereof; such a bandonment may be by parol, 3. The failure to act promptly upon the and the fact of its having been done estab- discovery of fraud is fatal to an action to lished by evidence of the acts and declara- enforce rescission.--Brown v. Domestic Utiltions of the parties. Tompkins v. Davidow, ities Mfg. Co., 172 Cal. 733, 159 Pac. 163. 27 Cal. App. 327, 149 Pac. 788.
4. While it is true that where a rescission 12. Mistakes or misrepresentations (subd.
in pais, under section 1691 of the Civil Code, 1).—Where there is no relation of trust or is relied on, the party rescinding need not confidence between the parties, misrepre
show that he has restored that which is sentations of law do not amount to fraud worthless, yet he must always show that he and will not furnish a ground for the rescis- has complied with the requirement to rescind sion of a contract.—Haviland v. Southern promptly, and this implies some notice to the California Edison Co., 172 Cal. 601, 158 Pac. other party of such determination to extin328.
guish the contract.—Brown v. Domestic Util13. Where the vendors and the vendee
ities Mfg. Co., 172 Cal. 733, 159 Pac. 163. under such a contract enter into compromise
5. In an action to rescind a contract for agreement based upon the mutual belief the purchase of certain washing-machines that the former had the absolute right to and to compel a reconveyance of certain declare a forfeiture of the contract because equities in real property given in part conthe final payment of the purchase money was
sideration for the contract, upon the ground not timely made, the vendee, upon discovery of alleged fraud practiced upon the plainof the mistake, is entitled to rescind the tiffs, where it appears from the pleadings agreement.-Butte Creek Consol. Dredging and the evidence that there was an inexcusCo. v. Olney, 173 Cal. 697, 161 Pac. 260.
able delay of twelve months after the disTo entitle the buyer to rescind, it is covery of the alleged fraud before attempt immaterial whether the seller knew the
was made to rescind, the delay is fatal to falsity of his representations or intended plaintiffs' case, in the absence of pleading to commit a fraud in making them.—Pepper
of proof that the delay was caused by undue v. Vedova, 26 Cal. App. 406, 147 Pac. 105. influence exercised by defendants over plain15. Partial failure of consideration (subd.
tiffs, and that there was relation of 2). Where a corporation agrees in consid
confidence between the parties.-Brown v. eration of the purchase of shares of its
Domestic Utilities Mfg. Co., 172 Cal. 733, 159 stock to employ the purchaser at a stated
Pac. 163. salary, an unwarranted breach by the cor
6. The provision that the rescission must poration in discharging purchaser with- be made “promptly upon discovering the out cause entitles the latter to rescind the facts" is mandatory as to the promptitude contract for the purchase of the stock, there required, except to the cases herein being a partial failure of consideration in enumerated (duress, undue influence, or disa substantial part.-Brown v. National Elec- ability, and the party is aware of his right tric Works, 168 Cal. 336, 143 Pac. 606.
to rescind) and others where a sufficient In an action for damages for breach
showing is made in excuse of the delay.of a written contract, the plaintiff can not United Motor S. F. Co. v. Callander, 30 Cal. contend that the defendant is not entitled App. 41, 157 Pac. 561. to defend upon the theory that the three
Must put other party in statu quo.instruments involved constitute but a single The plaintiff can not avoid its duty to recontract, and that a breach of one consti- store to the defendant what it has received tuted a failure of consideration which would by creating its disability to do so. In such entitle the defendant to rescind the entire case it must make good in damages the contract. The remedy given for the refor- value of the part of the property it received mation of a contract is not exclusive in such and can not restore, and this it may be rea case.—Torrey V. Shea, 29 Cal. App. 313, quired to do in the action for rescission.155 Pac. 820.
United Motor S. F. C. v. Callander, 30 Cal.
8. Conceding that before one party can METHOD OF RESCISSION.
rescind he must place the other in statu quo,
such rule has no application here, since 1-6. Must act promptly (subd. 1).
plaintiff, under the terms of the contract, 7, 8. Must put other party in statu quo
had received nothing whatsoever from de(subd. 2).
fendants.-Mettler v. Vance, 30 Cal. App. 1. Must act promptly (subd. 1).One 499, 158 Pac. 1044. seeking to rescind a contract must exercise the right promptly upon discovering the § 1698. facts which entitle him to rescind.--Wood- 1. Modification of contract-Construction ard v. Glenwood Lumber Co., 171 Cal. 513, of section.-A mere promise to obtain money 153 Pac. 951.
and thereupon hold it in trust does not
create a trust until it is at least so far exe- the former was not only to provide the trescuted that the money has been obtained in tles, but to take care of the shifting thereof, accordance with the promise. Considered in notwithstanding the persons whose neglithat light the agreement between the payer gence caused the injuries were, as to such and payee of the note in question was inef- owner, independent contractors.-Gordon v. fectual to alter or extinguish the note, since Roberts, 30 Cal. App. * 76, 157 Pac. 15. it was an attempt to alter a written agree- 5. Where goods are accepted for shipment by an unexecuted parol agreement.- ment, but the vessel not being ready to reMolera v. Cooper, 173 Cal. 259, 160 Pac. 231.
ceive the shipment, the goods are stored in a 2. The assignment under these circum
government warehouse, where they are substances is not rendered invalid under the
sequently destroyed, the carrier is liable for terms of section 1698, Civil Code, providing their loss.-Canadian Pac. R. Co. v. Wieland, that "a contract in writing may be altered
226 Fed. 670. by a contract in writing, or by an executed
6. Extent of proof of.-In an action for oral agreement, and not otherwise.”—Grib
damages on account of personal injuries ling v. Bohan, 26 Cal. App. 771, 148 Pac. 530.
sustained while being conveyed in a passen$ 1714.
ger elevator owned and operated by the de
fendant, it is only necessary for the plaintiff NEGLIGENCE-WILFUL ACT OF.
to prove, in order to make out a case, pre1-5. Acts constituting.
sumptively showing negligence on the part 6. Extent of proof of.
of the defendant, that he was injured by 7. 8. Instructions.
the rapid descent and sudden stopping of
the elevator, and that the elevator was under 1. Acts constituting.—It is not negligence
the control and management of the defenper se for a passenger on a street-car to go
dant.—Worden v. Central Fireproof Building upon the platform or steps while the car is
Co., 172 Cal. 94, 155 Pac. 839. still in motion preparatory to getting off.Froeming v. Stockton Elec. R. Co., 171 Cal.
—An instruction that
"when it is shown that the injury to the 401, 153 Pac. 712. 2. There are three elements necessary to
passenger was caused by the act of the carsustain an action for personal injuries: The
rier in operating the instrumentalities emexistence of a duty on the part of the de
ployed in its business, there is a presumption fendant to protect the plaintiff from the
of negligence which throws upon the carrier injury of which he complains; a failure by
the burden of showing that the injury was the defendant to perform that duty; and, an
sustained without any negligence on its injury to the plaintiff from such failure of
part. It is for you to determine whether or the defendant. When these elements are
not a passenger is guilty of contributory brought together, they unitedly constitute
negligence in going upon the platform of a actionable negligence. The absence of any
the steps thereof preparatory to one of these elements renders a complaint
alighting therefrom when the car stops, and bad, or the evidence insufficient.--Fallon v.
that contributory negligence on the part of United Railroads, 28 Cal. App. 60, 151 Pac.
a passenger can not be presumed from the 290.
mere fact of injury, but must be proved, 3. Negligence is a relative term, depend
and the burden of proving contributory neging upon inferences to be drawn from many
ligence on the part of the injured person is facts and circumstances which it is the
cast upon the defendant," fully embraces the province of the jury to draw in each particu
la w.-Froeming v. Stockton Elec. R. Co., 171 lar case; it seldom happens that the question
Cal. 401, 153 Pac. 712. is so clear from doubt that the court can 8. An instruction to the jury that "it is undertake to say, as matter of law, that the the duty of a street railway company to jury could not fairly and honestly find for a fford a reasonable time for its passengers the plaintiff, and when they so find upon to alight from its cars at the place where facts as to which reasonable minds might the car stops for that purpose, and if a pasdiffer in the conclusion reached, their deci- senger is injured without fault on his part, sion is not subject to review on appeal.- while on the steps of a car slowing down Cooley v. Brunswig Drug Co., 30 Cal. App. for the purpose of enabling passengers to 58, 157 Pac. 13.
alight, preparatory to alighting when the 4. The owner of a building in course of car has stopped, by reason of a sudden startconstruction is liable for injuries received ing of the car, the burden is thrown upon by a person standing on the sidewalk in the company to show that the injury was front of and several feet distant from the not the result of its own act of negligence," line of the building from the falling upon is not objectionable as declaring to the jury him of a painter's trestle, during the moving "that a passenger has a right to be on the thereof, where, under the terms of the con- steps of a moving car."--Froeming v. Stocktract between the owner and the painter, ton Elec. R. Co., 171 Cal. 401, 153 Pac. 712.
eh.II arts. I,II,III.)
OBLIGATIONS ARISING FROM PARTICULAR TRANSACTIONS.
mediately after the buyer refuses to accept
the bottles, still the seller is required to 1. Option to buy-Effect of.-Where an agreement gives the lessee of a piece of land
exercise reasonable diligence in locating the
nearest market and ascertaining the prevailan option during the term of the lease to buy the land at a stated price, but does not
ing market price for the rejected bottles.fix the time for making the deed or declare
Lund v. Lachmap, 29 Cal. App. 31, 154 Pac.
295. expressly that the lessor would execute a
7. Under the common law, there were two deed, the exercise of the option makes the agreement one for the sale of land at a fixed
different actions growing out of the sale of price, and the seller is bound to convey title.
personal property, to-wit: 1. An action for In the absence of anything to the contrary,
goods bargained and sold, where the goods the covenants to pay the price and to trans
had been sold but not delivered, and there fer the property are dependent and a con
had been a complete sale and the property veyance would be due upon the payment of
in the commodity sold had become vested the price.-Joyce v. Tomasini, 168 Cal. 234,
in the defendant, there having been an actual 142 Pac. 67.
acceptance of the same by him. 2. An action
for goods sold and delivered, in which case 1749.
it was requisite to directly allege the deliv
ery as well as the sale of the article.-JohnResale by seller.-A letter from the
son v. Dixon Farms Co., 29 Cal. App. 52, 155 buyer refusing to accept any more of the
Pac. 134. eggs is not such a breach of the contract as
8. Upon the breach of a contract of sale to require the seller to resell the remainder
by the purchaser, the seller is at liberty to of the eggs immediately.—Cheda v. Kockos, 28 Cal. App. 374, 152 Pac. 735.
fully perform on his part, and when he has
done all that is necessary to effect a delivery 2. The right of resale may be exercised
of the property, so as to pass title to the within a reasonable time after default by
purchaser, he may store or retain it for the the buyer, and if the delay is not unreason
purchaser, or he may resell it as agent for able it is not necessary for the resale to be
the purchaser.—Pabst Brewing Co. v. E. made immediately after the default, although
Clemens Horst Co., 229 Fed. 913. the price of the goods may be on a steady decline.-Cheda v. Kockos, 28 Cal. App. 374,
$ 1753. 152 Pac. 735. 3. Where under a contract for the pur
1. Delivery within reasonable time.--A chase and sale of cold storage eggs the
delivery of goods within ten or twelve days buyer, three days prior to the expiration of
is within a reasonable time where the conthe time mentioned in the contract within
tract merely requires delivery on or about which the eggs were all to be delivered, re
a certain date.-Passow & Sons v. Harris, 29 fuses to accept the portion of the eggs not
Cal. App. 560, 156 Pac. 997. already delivered, on the ground that they
2. The vendees under a contract for the are unmerchantable, and the seller within purchase of billiard-tables are stopped from six days after the expiration of the term asserting that the vendor failed to deliver proceeds to resell the same, but does not
the tables in time, and that therefore they succeed in disposing of them all until two were justified in refusing to accept them, weeks later, the resale is made within a rea
where the contract failed to provide a spesonable time after the breach of the con- cific date for their delivery, but instead that tract.-Cheda v. Kockos, 28 Cal. App. 374, the delivery should be "on or about" a cer152 Pac. 735.
tain date, and the vendees four days after 4. The seller of rejected property who
the expiration of such date advised the seeks to recoup his loss, if any, by a private
vendor that they might make delivery at a sale, must resort to such resale in the open
later date, and made no objection to the market and at market values.-Lund v. Lach- delay until the day prior to delivery, when man, 29 Cal. App. 31, 154 Pac. 295.
they attempted to rescind the contract. 5. The market value of a commodity is
Passow & Sons v. Harris, 29 Cal. App. 560, the highest price in the market where it is
156 Pac. 997. offered for sale which those having the means and inclination to buy are willing to
§ 1763. pay for it; and market values are created 1. Warranty, what is.—The word "merand controlled by the condition of the mar- chantable" is synonymous with the word ket with reference to supply and demand “marketable" as used with reference to the rather than by the particular or peculiar title "real estate."-Agnew v. Nelson, 27 Cal. selling ability of the seller.-Lund v. Lach- App. 39, 148 Pac. 819. man, 29 Cal. App. 31, 154 Pac. 295.
2. It is not necessary, in order to create 6. While it is not incumbent upon the an express warranty of an article of perseller of wine bottles to make a resale im- sonal property, that the word "warrant”
should be employed, or that any particular to the quality, even though there was а or formal words of warranty should be used; failure to take advantage of the opportuany affirmation made at the time of the sale nity for examination.—Alexander v. Stone, or exchange as to the quality or condition 29 Cal. App. 488, 156 Pac. 998. of the thing sold will be treated as a war- As to rule on examination by buyer, see ranty if it was so intended, and if the other post, C. C. pt., $ 1785. party acquired the property on the faith of such affirmation.—Costs v. Hord, 29 Cal. 1784. App. 115, 154 Pac, 491.
1. Time of payment.-Where one buys 3. Where both buyer and seller, by rea
personal property at an agreed price, by son of their occupation, have expert knowledge of the kinds of goods in question, an
implication he agrees to pay the price, and expression of the latter at the time of sale
if no time of payment is fixed the law makes that the goods were first class is but the
the time of delivery as the time for pay
ment.-Gilfallan v. Gilfallan, 168 Cal. 23, expression of an opinion, or what is termed
141 Pac. 623. "puffing,” and not an express warranty of
2. quality.-Alexander V. Stone, 29 Cal. App.
Where the contract is silent as to the 488, 156 Pac. 998.
time of payment the law contemplates that
the act of delivery and that of payment 4. While it is true that an express warranty to be available must be alleged in
shall be concurrent; the seller, however, is the complaint, this does not mean that in
not entitled to payment until he delivers
“the thing sold," and the buyer is entitled order to create such a warranty the word “warranty" should be employed, or any form
to an inspection before payment, and to
repudiate the sale and refuse payment if the of affirmative words of warranty; any affir
article delivered fails to conform to the mation made at the time of the sale, as to the character or condition of the thing
description of the goods purchased.--Newsold, will be treated as a warranty if it is
mark v. Smith, 26 Cal. App. 339, 146 Pac.
1064. so intended, and if the other party acquired the property on the faith of the affirmation. -Morris v. Fiat Motor Sales Co., 32 Cal.
§ 1785. App. 315, 162 Pac. 663.
1. Inspection by buyer.-A seller of a
designated quantity of “choice, recleaned, 8 1766.
small white beans of the crop of 1911" is 1. Sale by sample, warranty on.-A sale
not justified in refusing to comply with his of goods is not by sample where it is shown
contract by reason of the demand of the that the order therefore was given by the
buyer, upon a tender of delivery, that he buyer after an examination of the goods and
be permitted to make an inspection of the part payment made on the purchase price,
beans as a condition precedent to the makand an arrangement entered into fixing the
ing of payment.-Newmark v. Smith, 26 Cal. terms of the payment of the balance and of
App. 339, 146 Pac. 1064. the shipment of the goods, notwithstanding
As to rule when there can be no inspection samples of the goods were sent by the sell- by buyer, see ante, C. C. pt., $ 1771. ers, at the request of the buyer, to the firm 2. Unless otherwise agreed, when the of which the latter was a member.-Alexan
seller tenders delivery of goods to the buyer der v. Stone, 29 Cal. App. 488, 156 Pac. 998. he is bound on request to afford the buyer a
reasonable opportunity of examining the $ 1770.
goods for the purpose of ascertaining 1. Things bought for a particular pur
whether they are in conformity with the pose-Warranty.-A contract which merely
contract.--Newmark v. Smith, 26 Cal. App. warrants that a dredge would move a given
339, 146 Pac. 1064.
3. quantity of material a given distance under
Where the buyer has an opportunity to certain defined circumstances implies
examine the goods there is no implied warwarranty under this section that the dredge
ranty as to the quality, even if the buyer would be capable of dredging the bottom of
fails to take advantage of the opportunity a particular harbor, even though the parties
for examination given him.-Alexander v. understood the general purpose for which
Stone, 29 Cal. App. 488, 156 Pac. 998. it was to be used was the doing of such work.--United Iron Works v. Outer Harbor $ 1786. D. & W. Co., 168 Cal. 81, 141 Pac. 917.
1, Breach of warranty, rescission for.2. A warranty will be implied where the On the sale of a team of farm horses a vendor contracts with the vendee with the warranty that they will work together and full knowledge as to the particular purpose have no bad habits and are physically sound for which the article is to be used.-Lich- forms a condition of the contract which, if tenthaler v. Samson Iron Works, 32 Cal. broken, will warrant rescission.-Pepper v. App. 220, 162 Pac. 441.
Vedova, 26 Cal. App. 406, 147 Pac. 105.
2. An action can be brought to rescind 8 1771.
an executed contract for the breach of a 1. No examination by buyer-Warranty warranty, where the false representations Where one has an opportunity to examine as to the quality of the property go to the the goods there is no implied warranty as essence of its value, and render it useless,