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posal, and further alleging a demand for the same and the refusal of the defendant to deliver, is demurrable, as it should have contained an assignment of the breach of the contract or guaranty: Dabovich v. Emeric, 7 Cal. 209. The true point at issue is, whether the defendant undertook to deliver. From the nature of the sale it operated as a delivery. There was no necessity of a demand on defendant, unless for the purpose of enabling him to comply with his guaranty: Id.

39. Executory Agreements. -Executory agreements for the sale of goods are within the statute, as well as other contracts: Bennett v. Hill, 10 Johns. 364. A contract for the sale and delivery, if so completed as to be valid in the State where made, will be enforced in this State (Missouri): Houghtaling v. Ball, 20 Mo. 563.

40. Memorandum.-An agreement of sale signed only by the seller, but delivered to and accepted by the buyer, will sustain the buyer's action for non-delivery: Egerton v. Mathews, East, 307; 20 Pick. 9; 17 Q. B. 103. The memorandum of a clerk of the seller, of sales by him at auction, is sufficient to bind the purchaser: Frost v. Hill, 3 Wend. 386. The memorandum required of a contract of sale is not binding upon the seller, unless signed by the buyer also: See Justice v. Lang, 30 How. Pr. 425. This, however, was under a statute requiring the memorandum to be signed by the parties to be charged thereby.

41. Offer to Perform. The averments in a declaration that the "plaintiff was ready and willing" to receive goods, and pay for them on delivery and shipment, is a material one, and necessary to be proved: Robinson v. Tyson, 46 Penn. 286.

42. Several Causes of Action.-A complaint which states the facts of the case in ordinary and concise language is not demurrable, because such statement shows that the plaintiff is entitled to recover upon two different legal grounds: Mills v. Barney, 22 Cal. 240. But it has been held that the purchaser of a chattel cannot, in the same action, seek delivery of posses sion of it, and damages for the non-delivery; the one being an action for a tort, the other upon contract: Furniss v. Brown, 8 How. Pr. 59; Maxwell v. Farnam, 7 Id. 236.

43. Tender. Where a party contracts for a quantity of wheat, to be delivered on demand, and paid for on delivery, in action for non-delivery it is unnecessary for plaintiffs to aver and prove a tender of the purchase money at the time of demand or before suit: Crosby v. Watkins, 12 Cal. 85. 44.

Warehouseman.

A complaint against a warehouseman, which does not allege that the goods belonged to the plaintiff, or that defendant was under an obligation to deliver them to him, is bad: Thurber v. Jones, 14 Wis. 16.

No. 296.

X. The Same-For not Delivering within a Specified Time.
[TITLE.]

The plaintiff complains, and alleges:
I. That on the . . . . . . day of ....

187.,

at

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the plaintiff agreed with the defendant to buy of him, and the defendant then agreed to sell to the plaintiff, and to de

liver to him on the .... day of....

.........

187., at....... cents per

bushels of oats, at the price of

......

bushel, to be paid for on the delivery thereof.

II. That the said time for the delivery of the said oats has elapsed, and that plaintiff has always been ready and willing to receive the said oats, and to pay for them at the price aforesaid, on delivery, according to the terms of said agreement, of all which the defendant had notice.

III. That the defendant has not delivered the same, nor any part thereof, to the plaintiff, at ... or elsewhere. IV. That the plaintiff has thereby lost profits, and has sustained damage, to the amount of

[Demand of Judgment.]

dollars.

45. Tender of Performance.-A tender of performance will be necessary in contracts for the purchase of a thing at a future day named, and at a specified price, and an averment of readiness and willingness will not suffice: Lester v. Jewett, 11 N. Y. 453; Smith v. Wright, 1 Abb. Pr. 243; compare Coonley v. Anderson, 1 Hill, 519.

46.

....

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Allegation where neither Time nor Place of Delivery was Fixed. That on the .... day of ......., 187., at the plaintiff was ready and willing, and offered to receive and pay for said flour, and otherwise has duly performed all the conditions thereof on his part.

47. Offer and Tender.-In actions on a contract where neither time nor place of delivery was fixed, the plaintiff' must aver an offer or tender of performance on his part (Lester v. Jewett, 1 Kern. 453), and an offer to pay on delivery: Smith v. Wright, 1 Abb. Pr. 243. Where goods are to be delivered at one of two places, at the option of the seller, he is bound to give the buyer notice of the place selected: Rogers v. Van Hoesen, 12 Johns. 221.

48. Time. Where no time of payment and no time of delivery are agreed upon, payment and delivery are concurrent acts, and neither can maintain an action without showing a readiness and willingness to perform on his part: Coler v. Livanston, 2 Cal. 51.

49. Allegation where both Time and Place were Fixed.-That the plaintiff was ready at the time and place appointed to receive said................ and to pay for the same according to the agreement, and otherwise has duly performed all the conditions of the agreement on his part.

50. Place. In actions on contracts in which both time and place were fixed, it is sufficient to aver a readiness at the place appointed to receive and to pay: Vail v. Rice, 5 N. Y. (1 Seld.) 155; Clarke v. Dales, 20 Barb. 42; and see Dunham v. Pettee, 8 N. Y. (4 Seld.) 508. And such an averment is essential: Clark v. Dales, 20 Barb. 42.

51. Tender on Demand.-It need not be alleged that a tender was made upon demand. He must allege that he was ready and willing to pay for the goods without a tender (Coonley v. Anderson, 1 Hill, 519; Vail v. Rice, 5 N. Y. (1 Seld.) 155; Bronson v. Wiman, 8 N. Y. 182; compare Chapin v. Poller, 1 Hilt, 366), even where plaintiff's obligation depends on an act of

the defendant to be done at the same time: White v. Demill, 2 Hall, 405. Readiness to receive and to pay according to the terms of the agreement, and that defendant had notice of such readiness, is sufficient without tender: 2 Chitt. Pl. 327; Rawson v. Johnson, 1 East. 203. It is sufficient to aver that he had been at all times ready to receive and to pay: Porter v. Rose, 12 Johns. 209.

52. Allegation where the Particular Time of Delivery was not Appointed. That on the...... day of.............., 187., at the place appointed, the plaintiff was ready to receive said.... and pay for the same, according to the agreement, of which the defendant had notice; and the plaintiff has otherwise duly performed all the conditions thereof on his part. On a contract to deliver "on or about" a certain day, the seller has a reasonable time after the day to deliver: Ripp v. Wiles, 3 Sandf. 585.

[TITLE.]

No. 297.

xi. Allegation of Part Payment.

The plaintiff complains, and alleges:
I. That on the .... day of

........

187., at

it was mutually agreed between the plaintiff and the defendant that the defendant should sell and deliver to the plaintiff, at... . . . on or before the ..... day of................ 187.. [describe the thing], and that the plaintiff should pay to the defendant therefor at the rate of........dollars per... amounting to.... ..dollars, payable as follows: ......dollars at the time of making said agreement, and the residue on the delivery of the.... aforesaid.

as

II. That the plaintiff at the time of the contract paid to the defendant the sum of......dollars, in pursuance of the agreement.

III. That the plaintiff was ready and willing at the time and place aforesaid, to receive said goods and pay the balance therefor, of all which the defendant had notice; yet the said defendant hath not delivered the same or any part thereof; to plaintiff's damage ... ... dollars.

........

[Demand of Judgment.]

53. Payment. The giving of a promissory note, upon a purchase of goods, is not a sufficient payment to take the contract of sale out of the Statute of Frauds: Ireland v. Johnson, 18 Abb. Pr. 392. Part payment, to take the contract of sale out of the statute, must be made at the very time of making the contract. A payment the next day, though accepted on account, will not suffice: Bissell v. Balcom, 40 Barb. 98; Allen v. Aguira, 5 N. Y. Leg. Obs. 380.

54. Rescission by Vendor.-To enable the vendor to rescind the sale,

he must offer to return the notes given for the goods: Coghill v. Boring, 15 Cal. 213. If the contract be rescinded, the vendee is entitled to recover the money paid. If the contract is not rescinded, the vendees are entitled to possession on payment of the full amount due: Miller v. Steen, 30 Cal. 407. The party rescinding must put the other party in statu quo: Id. Where A. has made a payment in advance on a contract to purchase stock of B., which B. refuses or fails to deliver, and A. notifies B. that he claims the right to rescind the contract, and claims repayment of the money paid; the notice does not affect his right to maintain an action for damages on the contract: Jones v. Post, 6 Cal. 102.

[TITLE.]

No. 298.

xii. Against Seller of Stock, for Non-Delivery.

The plaintiff complains, and alleges:

the

I. That on the.......day of......, 187., at. plaintiff and defendant entered into an agreement subscribed by them, whereby it was mutually agreed between them that the defendant should sell and deliver to the plaintiff, at such time within........days thereafter as the plaintiff should elect, ........shares of the capital stock of the...... .company, and that the plaintiff should pay

[blocks in formation]

187., at.

.....

II. That on the....day of..... plaintiff tendered to the defendant said sum of

the

dollars, and otherwise duly performed all the conditions of said agreement on his part, and demanded of the defendant that he deliver said .. shares of stock to the

plaintiff.

III. That the defendant has not delivered the same.

[Demand of Judgment.]

55. Law of Place.-If a contract for the sale and assignment of certificates of stock of a corporation is entered into in another State, but the certificates are afterwards delivered in this State, the legality of the sale and assignment is to be tested by the laws of this State: Dow v. Gould & Curry S. M. Co., 31 Cal. 629.

CHAPTER VIII.

FOR SALE OF REAL PROPERTY.

No. 299.

i. Purchaser against Vendor, for Breach of Agreement to Convey.

[TITLE.]

The plaintiff complains, and alleges:

I. That on the .... day of

187., at

the plaintiff and defendant entered into an agreement, under their hands and seals, of which the following is a copy [insert copy of contract].

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II. That on the.... day of.... 187, the plaintiff demanded the conveyance of the said property from the defendant, and tendered [... ... ... dollars] to the defendant [or was ready and willing, and offered to the defendant to pay.... ... dollars, and duly to perform all his agreements under the said covenants, upon the like performance by the defendants].

III. That on the...... day of........, 187., the plaintiff again demanded such conveyance [or that the defendant refused to execute the same].

IV. That the defendant has not executed any conveyance of the said property to the plaintiff.

[Or, IV. That there is a mortgage upon the said prop

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erty, made by
dollars, recorded in the office of

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for

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on the .....

187., and still unsatisfied of record; or

any other defect of title.]

[Demand of Judgment.]

1. Allegation of Possession.-An allegation in a complaint that the plaintiff "assumed to and did exercise acts of control over and possession of portions" of a tract of land, is not equivalent to an averment that the plaintiff had actual possession of the tract of land, or any part of it: Brennan v. Ford, 46 Cal. 7.

2. Allegation of Seisin in Fee.-An allegation that the plaintiff “is the owner" of the land sued for, is in substance an allegation of seisin in fee, in “ordinary" instead of in technical language: Garwood v. Hastings, 38 Cal. 216.

3.

Contract in the Alternative. When a contract is in the alternative, as to pay the purchase price or reconvey the property, on a day named, the party who is to perform must make his election on the day named, and

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