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15. City Property.—Where the sale of the city's property was without authority, the plaintiff is not required to surrender the property before bringing an action for recovery back of the purchase money: McCracken v. San Francisco, 16 Cal. 591. He is not required to transfer either the property or the possession to the corporation before the commencement of the action: Herzo v. San Francisco, 33 Cal. 134.

16. Demand of Judgment. The plaintiff may recover interest on the deposit money recovered, from the time of demand: Farquhar v. Furley, 7 Taunt. 592. And on money in his hands lying idle, ready to complete the contract: Sherry v. Oke, 3 Dowl. Pr. C. 349.

17. Fraudulent Sale.-Where plaintiff bought a lot and paid taxes thereon, and afterwards discovered that the defendant had previously sold it, and the defendant knew of this former conveyance, and that the money was fraudulently obtained, the procurement by defendant of a full title to the lot will not bar the plaintiff's recovery of the purchase money and interest: Alvarez v. Brannan, 7 Cal. 503.

18. Offer to Perform.-An offer to perform is necessary; mere readiness is not sufficient: Lester v. Jewett, 11 N. Y. 453; Williams v. Healey, 3 Den. 363; Johnson v. Wygant, 11 Wend. 48.

19. Performance.-It is necessary for the plaintiff to aver his readiness and willingness to fulfill at the time and place agreed: Porter v. Rose, 12 Johns. 203. But the purchaser is not bound to make an absolute tender of performance; a conditional offer to perform is sufficient; Robb v. Montgomery, 20 Johns. 15; West v. Emmons, 5 Id. 179; Topping v. Root, 5 Cow. 404; Rawson v. Johnson, 1 East. 203; Bellinger v. Kilts, 6 Barb. 273.

20. Purchase Money.-To recover back purchase money on the ground of a breach of covenant, the complaint must allege a breach of covenant: Wills v. Prim, 21 Tex. 380.

21. Purchase from Agent.-Where a party makes a purchase from an innocent agent, who afterwards parts with the money of his principal, and it afterwards transpires that such purchase avails the purchaser nothing, no right of legal complaint lies against the agent: Engels v. Heatly, 5 Cal. 135.

22. Reasonable Time.-The bringing of the action is not, however, a sufficient demand. A conveyance should be demanded and refused, and a reasonable time allowed for its execution: Fuller v. Hubbard, 6 Cow. 13; Hackett v. Huson, 3 Wend. 249; Foote v. West, 1 Den. 544; Sutweller v. Linnell, 12 Barb. 512; to the contrary are: Driggs v. Dwight, 17 Wend. 71; Flynn v. McKeon, 6 Duer, 203.

23. Rescission by Vendee. Upon failure of the vendor to be ready with the deed, and convey a good title, on the day agreed, the vendee may rescind the contract, and recover back the deposit: 11 Johns. 525; Sugd. on Vendors, 359; Van Benthuysen v. Crapser, 8 Johns. 257; Dominick v. Michael, 3 Sandf. 374. And a demand of the deposit is a rescission: Id. And if on demand the vendor positively refuses, no further demand is necessary: Blood v. Goodrich, 9 Wend. 68. But if by the laches of the vendee of land, the remedy at law is barred, and the right to a specific performance is forfeited, there can be no recovery of what has been paid on the contract: Finch v. Parker, 49 N. Y. 1.

24. Sale by Auction.-Upon a sale by auction, if the vendor fails to

complete the contract, the deposit may be recovered from the auctioneer as stakeholder: Lee v. Munn, 1 Moore, 481; Curling v. Shuttleworth, 6 Bing. 121. And if he fail to disclose his principal, he is liable for damages as well: Hanson v. Robardeau, Peake's N. P. C. 120; Kent's Comm. 630, 631; Mauri v. Hefferman, 13 Johns. 58; Bank of Rochester v. Monteath, 1 Den. 402; Mills v. Hunt, 20 Wend. 431.

25. When Action will not Lie.- Where a purchaser at a sale under a decree in foreclosure suit, which decree was void, because grantee of the mortgagor was not made a party, an action will not lie to recover back the money paid them on his bid: Boggs v. Hargrave, 16 Cal. 559.

[TITLE.]

No. 156.

vii. To Recover Back a Wager.

The plaintiff complains, and alleges:

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187., at.....

the

I. That on the....day of.... plaintiff deposited in the hands of the defendant, as stakeholder, ...dollars, which was to abide the event of a wager made between the plaintiff and one A. B., on the result of [here state what, as election, race, or othewise].

II. That such wager was in violation of the statute entitled "An Act," etc. [title of act], passed........, and the acts amendatory thereof and supplementary thereto.

III. That no decision has as yet been rendered upon said election [race, or otherwise].

IV. That thereby an action accrued to plaintiff, according to the provisions of said act.

[Demand of Judgment.]

26. Actions.-There seems to be no satisfactory reason for the distinction, as made by the English cases, between actions directly between the parties to the wager, and actions between the loser of a bet and the stakeholder, if one has been employed: Johnston v. Russell, 37 Cal. 670. An action to recover back money lost at play, is not an action for a penalty or forfeiture: Arrietta v. Morrissey, 1 Abb. Pr. (N. S.) 439. The complaint in such action must be special, setting out the facts, and bringing the plaintiff within the statute by force of which he claims to recover: 15 Johns. 5; Moran v. Morrissey, 18 Abb. Pr. 131. Where an act makes wagers on horse races and the holding of stakes criminal offenses, one who has deposited money with a stakeholder cannot recover it, although the race has not come off: Sutphin v. Crozer, 3 Vroom, 462; see Bybee v. Burbank, 2 Oregon, 295.

27. Demand.-An action against a stakeholder, to recover money deposited on an illegal wager, may be maintained without previous demand, when the money has been paid over before the action: Ruckman v. Pitcher, 1 N. Y. 392. In such an action interest is recoverable from the time of demand, e. g., from the commencement of the action: Ruckman v. Pitcher, 20 N. Y. 9; and 13 Barb. 556.

28. Facts must be Averred.-The complaint is obnoxious to a motion that it be made more definite and certain, unless it states the facts necessary to show clearly under which section of the statute the action is brought: Arrietta v. Morrissey, 1 Abb. Pr. (N. S.) 439. As the remedy in such action is given by statute, he must by his complaint bring himself within its provisions: Lungworthy v. Broomley, 29 How. Pr. 92. The count in a complaint stating that, on a day named, the defendant received a specified sum belonging to or on account of the plaintiff, and which is now due, being contrary to the provisions of the statute designating it, is not demurrable for not stating facts sufficient to constitute a cause of action: Betts v. Bache, 9 Bosw. 614.

29. Form. For another form, consult O'Maley v. Reese, 6 Barb. 658; Betts v. Bache, 14 Abb. Pr. 279.

30. Kansas.-In Kansas, money placed in the hands of a stakeholder, on an illegal bet on elections, may be recovered by the depositor, on demand, at any time before it is paid over to the winning party: Reynolds v. Mc Kinney, 4 Kansas, 94; Jennings v. Reynolds, 4 Id. 110.

31. Limitation of Right to Recover. If the parties to an illegal wager repent, and desire to withdraw before the wager has been decided, let them be encouraged to do so, by allowing them to recover their stakes from each other or from the stakeholder. But persons who allow their stakes to remain until the bet has been decided, are entitled to no such consideration: Johnston v. Russell, 37 Cal. 670. After the money has been lost and won, neither party ought to be heard in a court of justice: Id.

32. Michigan.-In Michigan, money lost at play or on a horse race, may be recovered as money had and received: Grant v. Hamilton, 3 McLean, 100.

33. Necessary Averments. In an action to recover money lost at play, since the statute gives the action only for losses exceeding twenty-five dollars at one sitting, and requires it to be brought within three months after payment, the defendant is entitled to require the plaintiff to specify in his complaint the amount lost at each sitting, and the time of payment. It is not sufficient that these facts might be called forth by requiring a bill of particulars: Arrietta v. Morrissey, 1 Abb. Pr. (N. S.) 439.

No. 157.

viii. By Landlord, against Tenant, for Repayment of Tax.
[TITLE.]

The plaintiff complains, and alleges:

I. That on the .... day of

187., at

the plaintiff and the defendant entered into an agreement of which the following is a copy [set forth lease or agreement].

II. That there was duly levied and assessed upon said premises for the year 187., and while the covenants of the aforesaid agreement were in full force, and the defendant in

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possession of the premises by virtue thereof, a tax of...... dollars, which the defendant neglected to pay.

.........

III. That by reason thereof, the plaintiff was, on the ... day of 187., compelled to pay the said sum of dollars arrearages of interest, and ........ per cent., amounting in the whole to

...

dollars, with

dollars.

IV. That defendant has repaid no part thereof to the plaintiff.

34. Demand.

[Demand of Judgment.]

The lessor's right of action is perfect without a previous demand of the tenant: Garner v. Hannah, 6 Duer, 262.

35. Illegal Taxes. In an action to recover back illegal taxes, it is not sufficient to aver that the valuation of the property is "unjust, disproportioned, and unequal." The complaint must state specifically wherein it is so: Guy v. Washburn, 23 Cal. 111; see, also, Dietrich v. Mayor of N. Y., 5 Hun. 421; Dewey v. Board of Sup., etc., 2 Id. 392.

No. 158.

ix. Against Carrier, to Recover Money in Excess for Freight.
[TITLE.]

The plaintiff complains, and alleges:

I. That on the........day of......, 187., at. the defendant agreed with the plaintiff to transport from

...to......, and to deliver to him certain goods of the plaintiff, for the sum of........dollars.

II. That the said sum of.... .....dollars was a reasonable sum to be paid therefor.

III. That the defendants entered upon the performance of said agreement, and transported said goods.

IV. That on the arrival of said goods the plaintiff demanded said goods of the defendant, and was ready and willing, and offered to pay to the defendants for transporting the same, the said sum of. . . . . . . . dollars.

V. That the defendant refused to deliver said goods to the plaintiff, unless he would pay to the defendant.... dollars for transporting the same.

........

187., at...

VI. That on the.......day of. the plaintiff paid...... .dollars to the defendant to obtain delivery of said goods, which sum he paid under protest, and expressly denying the defendant's right to claim it, and

otherwise performed all the conditions of said agreement on his part.

VII. That defendant has not repaid the same.

[Demand of Judgment.]

36. Concurrent Acts.-Delivery of freight by the carrier, and payment of freight money by the owners, are concurrent acts, and neither party is bound to perform his part of the shipping contract unless the other is ready to perform the correlative act: Frothingham v. Jenkins, 1 Cal. 43.

No. 159.

X. To Recover Back Freight on Failure of Carriage.

[TITLE.]

The plaintiff complains, and alleges:

the

I. That on the....... day of......, 187., at. . . . defendant agreed with the plaintiff to transport from..... to......., and to deliver to him certain goods of the plaintiff, for the sum of........ dollars.

II. That on the.......day of......., 187., the plaintiff paid to the defendant the sum of........dollars, as an advance payment for said transportation, and otherwise performed all the conditions of said agreement on his part. III. That the defendant has not transported said goods, nor delivered the same to the plaintiff.

IV. That on the......day of... ... ., 187., at

the plaintiff demanded of the defendant repayment of said sum of........ dollars advanced.

V. That he has not repaid the same.

[Demand of Judgment. ]

37. Advanced Freight.-Freight paid in advance for transportation of goods is to be repaid in the event of their not being carried, unless there be a special agreement to the contrary: 5 Sandf. 578; Griggs v. Austin, 3 Pick. 20; Harris v. Rand, 4 N. H. 259, 555; 3 Kent's Com. 226. This rule is not subject to any usage to the contrary: Emery v. Dunbar, 1 Daly, 408. Advanced freight can be recovered back by the charterer, in case of the loss of the ship, or non-performance of the voyage, whether by fault of the master or not: Lawson v. Worms, 6 Cal. 365.

38. Contract Generally.-Contracts for carrying freight form no exception to the general law, that where money is paid for an act to be done by another, and the act is not done, the money may be recovered back: Reiva v. Cross, 6 Cal. 29.

39. Non-Performance. Where money is paid by one person in consideration of an act to be done by another, and the act is not performed, the money so paid may be recovered back: Reina v. Cross, 6 Cal. 31; see Tuglor v. Beavers, 4 E. D. Smith, 215.

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