where performance is not yet due upon the part of the party who has previously given notice that he will not perform when such performance is due. In such cases, when performance on his part is due, and not before, if such notice has not been retracted, the other party may enforce the obligation without previously performing or offering to perform any conditions upon his part in favor of the former party. Such is the whole effect of this section: See in this connection, Keller v. Strasburger, 90 N. Y. 379.

As contended by plaintiffs, there can be no doubt of the right of a vendor, where the vendee refuses to take the goods sold and delivered, and repudiates the contract, to elect to treat the contract of sale as still in full force, and the goods as belonging to the vendee, and to sue on the contract for the entire contract price. But this does not mean that he may sue for the contract price before it is due according to the terms of the contract, and we have not been able to find any case so holding. The case of Brady v. Isler, 9 Lea (Tenn.), 356, is precisely in point. There the vendee abandoned possession of the goods, and the vendor repossessed himself thereof, and elected to resell the goods and sue for the difference between the price received upon the resale and the contract price. The action was brought before the expiration of the term of credit, and it was held that the action was premature and must fail. The court said: "It will be observed that no part of the purchase money was due at the time of the resale 361 of the goods. And in such case the vendee has not been guilty of any breach of the contract as to payment, although he may be in default in respect to his refusal to receive the goods, or, rather, in the abandonment of their possession." The court further, in effect, said that in the aspect of the case contended for by plaintiff, that the contract was valid and subsisting, the money was not due upon it when suit was brought, and that it is essential that it should be due before suit is brought to enforce the collection. We see in this case no possible answer to the objection that the action was brought to recover money alleged to be due upon a contract, before it became due under the terms of the contract. Upon the repudiation of the contract by the vendee, the vendors might have elected to keep the property as their own and at once sue for damages on account of the breach, but this action cannot, under the most liberal rules as to construction of pleadings, be held to be such an action. It was simply

and solely an action on the contract for the purchase price, based upon the promise of defendant to pay, and the evidence shows without conflict that, according to the terms of the contract, the liability had not accrued at the time the action was commenced.

The judgment and order denying the new trial must be reversed, and it is so ordered.

Shaw, J., McFarland, J., Lorigan, J., and Henshaw, J., concurred.

Chief Justice Beatty and Justice Van Dyke Dissented, the former delivering an opinion, a part of which is as follows: "This is not strictly an action upon the express contract for the sale of the machinery, but is in form and substance an action in assumpsit on an implied contract to pay for the value of goods sold and delivered, and is based upon the claim that the plaintiff had a right under the circumstances to rescind the stipulation for a credit of sixty days. There is abundant authority for the proposition that one who has sold goods or loaned money on a credit fraudulently obtained may, upon discovery of the fraud, sue in assumpsit before the credit has expired. There is no doubt authority to the contrary, one of the most noted cases being Galloway v. Holmes, 1 Doug. (Mich.) 330. But, on the other hand, the doctrine is sustained by the highest courts of New York, Massachusetts, Alabama, and perhaps other states, and it commends itself to me as a just and reasonable doctrine. The foundation of the doctrine being the right of rescission, it should be applied to any case where the right exists. In New York it has been extended to a case in which after the sale of the goods the purchaser made a transfer of his property in fraud of his creditors: Arnold v. Shapiro, 29 Hun, 478. In that case the court said: When a 'fraudulent disposition of the property has taken place at the time of the making of the contract, the fact itself would also avoid credit obtained by means of its concealment in incurring the liability. In principle the same effect should also follow such a disposition of the debtor's property, after he has contracted the debt and secured the credit, for it is always implied in such transactions that the debtor will make no disposition of his property which will operate as a fraud upon his creditor.' I have italicized that part of the opinion ion which states the principle governing cases of this character, which principle, in my opinion, clearly embraces the present case, for here, according to the facts found by the court, the debtor, after obtaining the credit, did make a disposition of his property which would 'operate a fraud' upon the creditor. He represented in purchasing the engine that it was to be employed in logging. Instead of putting it to work where it would earn money and enable him to meet his obligation to pay for it at the expiration of the term of credit, he shipped it back to San

1

Francisco, in violation of his contract and at the cost of the plaintiffs, obliging them to pay the freight to prevent its being sold to pay charges, and when it was attached by them they were compelled, of course, to discharge the lien of the carrier. The case is the same in all respects as that of a mechanic who buys a kit of tools on credit, representing that he is going to work at his trade, and who, instead of going to work, pawns the tools and pays another creditor with the money so obtained.

"In asking and obtaining a credit, a purchaser of goods always represents himself as having, or being able to provide, the means of discharging his obligation at maturity, and whatever representation he makes affecting his prospective ability to pay constitutes the basis upon which the credit is accorded. If, then, he materially impairs his ability to meet his obligation, and by an inexcusable breach of the contract renders the security of his creditor worthless or precarious, there is at least a partial failure of consideration for the credit, and it will be noticed that one authority cited in the main opinion (24 Am. & Eng. Ency. of Law, 2d ed., p. 1122) includes among the exceptions to the rule stated the case in which there has been a failure of consideration for the credit. It may be said that the reasoning upon which I hold this action to have been well brought is technical. I concede it, but I call attention to the fact that the main opinion rests its conclusion upon purely technical grounds. The right of plaintiffs to sue at the time they did is conceded, but their action is defeated because, as it is held, they have sued on the contract, instead of in tort. If we are to be technical, I think we should give the preference to a technicality that results in upholding a just claim against one who has, as appears by the findings of the superior court, wantonly violated his contract, to the serious injury of innocent parties. There may not be any precise precedent to sustain this action; but if I have succeeded in showing that the right of rescission is the basis of the rule which allows a creditor to sue in assumpsit regardless of an unexpired credit expressly stipulated, I have shown that this case is within a principle sustained by abundant precedent, and, the principle applying, a court constituted like this should not be afraid to make a precedent which in all like cases would tend only to the promotion of justice.''

In Case of a Sale on Credit the seller cannot ordinarily sue for the price until the expiration of the term of credit (Bradford v. Marbury, 12 Ala. 520, 46 Am. Dec. 264; Girard v. Taggart, 5 Serg. & R. 19, 9 Am. Dec. 327; Tucker v. Billing, 3 Utah, 82, 5 Pac. 554; Hunt v. Markle, 12 Ind. App. 335, 40 N. E. 151), unless, perhaps, there is fraud or some other controlling circumstance: Willson v. Force, 6 Johns. 110, 5 Am. Dec. 195; Jones v. Brown, 167 Pa. 395, 31 Atl. 647.

HAWLEY v. KAFITZ.

[148 Cal. 393, 83 Pac. 248.]

DEEDS.-Conditions Subsequent are not Favored, and no provision in a deed will be interpreted to create such a condition, if the language will bear any other reasonable interpretation. (p. 283.)

DEEDS-Condition Subsequent-Covenant to Build.-A provision in a deed that it is given and accepted upon the express agreement of the grantee to build a house of a specified value on the premises within a designated time, and that the agreement is a part of the consideration for the conveyance, creates a personal covenant, and not a condition subsequent. (pp. 283, 284.)

DEEDS Condition Subsequent-Evidence.-If a clause in a deed is no wise ambiguous or equivocal, evidence of the understanding of the parties that the clause was intended to create a condition subsequent is not admissible in determining whether or not it does. (p. 284.)

J. M. Brooks and Edward H. Bentley, for the appellants. P. W. Doone, for the respondents.

394 LORIGAN, J. The plaintiffs on November 26, 1901, executed to defendant William Kafitz a grant, bargain, and sale deed of a lot in the Electric Railway Homestead Association Tract in the city of Los Angeles for a money consideration of three hundred and seventy-five dollars. The deed contained the following provision: "This deed is given by the parties of the first part, and accepted by the second party, upon the express agreement of the second party to build, or cause to be built, upon the said premises within six (6) months from the date hereof a dwelling-house to cost not less than fifteen hundred ($1,500.00) dollars. Said agreement being considered by the parties hereto as part consideration for this conveyance." No dwelling of any kind was built upon the lot within the six months specified, and subsequent to the expiration of that period plaintiffs brought this action to have the right of defendant in said lot declared forfeited and for a decree requiring a reconveyance to them by defendant of the property. Defendant had judgment, from which plaintiffs appeal, their appeal being accompanied by a bill of exceptions.

The only question arising on this appeal from the judgment is as to the nature of the provision inserted in the deed relative to the building of a house on the lot granted within

six months and the correctness of the construction the trial court gave it. As to this provision, it is insisted by plaintiffs that by virtue of its incorporation in the deed an estate on condition subsequent was created, and defendant having failed to perform the condition, his interest in the property was subject to forfeiture at the instance of plaintiffs for nonperformance of the condition. The trial court held that this provision did not create a condition subsequent; that it amounted simply to a personal covenant. We think there can be no question of the accuracy of the construction placed upon it by the court. Conditions subsequent are those which in terms operate upon an estate conveyed and render it liable to be defeated for breach of the conditions. Such conditions are not favored in law because they tend to destroy estates, and no provision in a deed relied on to create a condition subsequent will be so interpreted if the language of the provision will bear any other reasonable construction. While no precise form of words is necessary to create a condition subsequent, still it must be created by express terms or by clear implication. 395 Merely reciting in a deed that it is in consideration of a certain sum, and that the grantee shall do other things specified therein, does not create an estate upon condition. There must be language used which is so clear as to leave no doubt that the grantor intended that an estate upon condition subsequent should be created-language which ex proprio vigore imports such a condition: Cullen v. Sprigg, 83 Cal. 56, 23 Pac. 222; Behlow v. Southern Pacific R. R. Co., 130 Cal. 16, 62 Pac. 295.

In the case at bar the provision in question which, it is claimed, created a condition subsequent contains no language which in terms declares such a condition, or which by necessary implication imports one. There is an entire absence of any of those apt or appropriate words or expressions which are usually employed for the purpose of creating a condition. subsequent-technical terms which, if a condition subsequent is intended to be created, generally follow the granting clause of the deed, and declare that the estate conveyed is upon "express condition" that certain things shall be done, or "provided, however," or "in the event that" certain terms imposed are or are not complied with, the deed shall be void, and the estate granted shall be terminated and forfeited. Neither is there in the deed any declaration that in the event