principal and agent or that of master and servant are concerned, from any case of the permissive use of the car by a member of the family solely for his own pleasure or convenience. Of course, it is true that every good father makes it his "business," in a certain sense of that word, to furnish so far as he can, for use by the members of his family, all those things that will contribute to their convenience and pleasure. But to our minds his doing this cannot, by any sound reasoning, warrant a conclusion that, in the subsequent use of the thing by a member of the family solely for his own convenience or pleasure, while engaged exclusively on a mission of his own, such member of the family is engaged on the father's business or in any way acting as his agent or servant.

(See

[1] We conclude that upon the facts stated at the outset, there is no liability on the part of the father for the negligence of his daughter. Our conclusion finds ample support in what appears to us to be the weight of authority. Doran v. Thomsen, 76 N. J. L. 754, [131 Am. St. Rep. 677, 19 L. R. A. (N. S.) 335, 71 Atl. 296]; Parker v. Wilson, 179 Ala. 361, [43 L. R. A. (N. S.) 87, 60 South. 150]; Van Blaricom v. Dodgson, 220 N. Y. 111, [L. R. A. 1915E, 363, 115 N. E. 443]; Loehr v. Abell, 174 Mich. 590, [140 N. W. 926]; Bolman v. Bullene (Mo.), 200 S. W. 1068; Hays v. Hogan, 273 Mo. 1, [Ann. Cas. 1918E, 1127, L. R. A. 1918C, 715, 200 S. W. 286]; Blair v. Broadwater, 121 Va. 301, [L. R. A. 1918A, 1011, 93 S. E. 632]; Zeeb v. Bahnmaier, 103 Kan. 599, [2 A. L. R. 883, 176 Pac. 326]; Watkins v. Clark, 103 Kan. 629, [176 Pac. 131]; Elms v. Flick (Ohio), 126 N. E. 66; Arkin v. Page, 287 Ill. 420, [5 A. L. R. 216, 123 N. E. 30].)

Many of the cases cited by learned counsel for respondent fail to sustain any claim of liability on the part of the father in such a case as the one before us. In McNeal v. McKain, 33 Okl. 449, [41 L. R. A. (N. S.) 775, 126 Pac. 742], a minor son was operating a car, so kept, in which at the time were his sister and a guest of the family, who were being carried for their pleasure. The court took occasion to say that the father would not be liable if the son were driving on his own business exclusively. The Missouri cases cited, Daily v. Maxwell, 152 Mo. App. 415, [133 S. W. 351], and Hays v. Hogan, 180 Mo. App. 237, [165 S. W. 1125], both from in

ferior courts, were overruled by later supreme court decisions. In Smith v. Jordan, 211 Mass. 269, [97 N. E. 761], the father was held liable, but the decision was based upon the fact that the minor son was driving his mother, in accord with general instructions expressly or impliedly given by the father, and the court took occasion to say that if the son had been operating the car in the performance of some independent design of his own, there would have been no liability on the part of the father. In Lemke v. Ady (Iowa), 159 N. W. 1011, the minor child was driving his mother and two visiting guests, and it was said that to sustain a claim of liability on the part of the father it must appear that the minor was engaged in some act for the benefit of the father or some member of the family. In Stowe v. Morris, 147 Ky. 386, [39 L. R. A. (N. S.) 224, 144 S. W. 52], the minor son was driving his sister and her friends. In Farnham v. Clifford, 116 Me. 299, [101 Atl. 468]; the question is not decided, the court putting stress on an admission of liability. on the part of the defendant as making the evidence sufficient to support the verdict. Hiroux v. Baum, 137 Wis. 197, [19 L. R. A. (N. S.) 332, 118 N. W. 533], is not in point. The father had purchased the car and arranged to have his son learn to drive it for the further use of the car, and the son was driving it under the instructor's guidance at the time of the accident. This was held sufficient to support the conclusion that he was then engaged in his father's business. The contention of respondent is, however, upheld by the opinions in Kayser v. Van Nest, 125 Minn. 277, [51 L. R. A. (N. S.) 970, 146 N. W. 1091]; Uphoff v. McCormick, 139 Minn. 392, [166 N. W. 788]; Birch v. Abercrombie, 74 Wash. 486, [50 L. R. A. (N. S.) 59, 133 Pac. 1020]; Hutchins v. Huffner, 63 Colo. 365, [L. R. A. 1918A, 1008, 167 Pac. 966]; Griffin v. Russell, 144 Ga. 275, [Ann. Cas. 1917D, 994, L. R. A. 1916F, 216, 87 S. E. 10]; Lewis v. Steele, 52 Mont. 300, [157 Pac. 575]; Boer v. Howell, 24 N. M. 142, [L. R. A. 1918F, 288, 173 Pac. 966]; Davis v. Littlefield, 97 S. C. 171, [81 S. E. 486]; King v. Smythe, 104 Tenn. 217, [L. R. A. 1918F, 293, 204 S. W. 296]; Allen v. Bland (Tex. Civ. App.), 168 S. W. 35, and our own district court of appeal case of Crittenden v. Murphy, 36 Cal. App. 803, [173 Pac. 595].

As we have said, there is a hopeless conflict in the decisions, but we are of the opinion that the weight of authority is in accord with our conclusion. The only statutory enactment in any way touching such a matter that we have thus far is the provision of the Motor Vehicle Act of 1919, which requires the parents of a minor child to join in the minor's application for a license to operate a car, and provides that any negligence of such minor in operating the car shall be imputed to the persons signing such application. (Motor Vehicle Act, sec. 24.)

The judgment in each case is reversed.

Olney, J., Shaw, J., Wilbur, J., Lennon, J., Sloane, J., and Lawlor, J., concurred.

[L. A. No. 4869. In Bank.-October 22, 1920.] NATIONAL PACIFIC OIL COMPANY, Respondent, v. W. E. WATSON, Appellant.

[1] VENDOR AND VENDEE-BREACH BY VENDOR-RESCISSION BY VENDEE -RECOVERY OF MONEYS PAID.-Where a contract of sale is rightfully rescinded by the vendee for a breach by the vendor, the latter is liable for the return of the moneys which he has received. [2] ID. ASSIGNMENT OF CONTRACT· BREACH OF VENDOR - RECOVERY

OF MONEYS PAID-RIGHT OF ASSIGNEE.-One who holds a contract of sale by assignment and who because of a breach of the contract by the vendor rightfully rescinds it has the right by virtue of his ownership of the contract to recover all moneys paid under the contract, whether paid by him or by those who held the contract prior to him.

[3] ID.-DELIVERY OF POSSESSION—UNREASONABLE DELAY BY VENDOR -RESCISSION BY VENDEE.-Under a contract for the sale of oil land making time of the essence of the contract and providing that the vendee should have the right to immediate possession, a delay of three years and nine months in giving possession is more

1. Right of vendee in contract for sale of real property to recover payments made, on rescission of contract, note, L. R. A. 1918B, 540.

2. Right of assignee of contract for purchase of land to sue for rescission thereof, note, Ann. Cas. 1917E, 845.

than a reasonable time, and the vendee has the right to rescind the contract.

[4] ID.-DELIVERY OF POSSESSION-DUTY OF VENDOR-CONSTRUCTION OF CONTRACT.-A clause in a contract of sale that "said buyer shall be entitled to immediate possession of said premises" is to be construed as an obligation on the part of the vendor to put the vendee in peaceable possession, and not as a mere provision that the vendee was privileged to take possession if he could get it without responsibility on the part of the vendor, where the parties, upon discovering that the land was claimed by a third party by adverse possession, made new arrangements providing that the vendor was not to receive further installments on the price until the vendee was put in possession.

[5] ID.

INABILITY TO GIVE POSSESSION-NEW ARRANGEMENTS AS TO PAYMENTS-ABSENCE OF NOVATION.-An arrangement between a vendor and vendee, upon discovery that immediate possession could not be given to the vendee as provided by the contract, placing the payments on the price in escrow until such time as the vendor might give possession, did not amount to a novation, but only a change in the agreement of the parties as to the manner of payment of the price.

[6] PLEADING Writing—-LEGAL EFFECT.-Where a writing is set forth in a pleading it is not necessary to plead its legal effect in addition.

[7] VENDOR And Vendee RESCISSION FOR FAILURE TO DELIVER POSSES-
SION TENDER OF BALANCE OF PRICE-WHEN UNNECESSARY.-A
vendee under a contract of sale is not required to tender the bal-
ance of the purchase price before he can rescind the contract for
failure of the vendor to deliver immediate possession as required
by the contract, where the vendor admittedly could not give
possession.

[8] ID.-CONVEYANCE BY QUITCLAIM DEED RULE AS TO TITLE-IN-
APPLICABILITY TO CONTRACT CALLING FOR POSSESSION.-The rule
that an agreement to convey by quitclaim deed does not require
the vendor to convey a good title has no application to a case
where from other considerations it is plain that the contract was
conditional upon the vendee being let into actual possession.
[9] ID.-FAILURE TO DELIVER POSSESSION WITHIN REASONABLE TIME

NEW ARRANGEMENTS-RIGHT OF RESCISSION-ABSENCE OF WAIVER.
While a vendee under a contract of sale waives his right to re-
scind for failure of the vendor to comply with the provision of
the contract requiring delivery of immediate possession, by enter-
ing into new arrangements with the vendor as to placing of the
payments on the price in escrow until such time as the vendor
might give possession, the right to rescind for failure of the
vendor to thereafter deliver possession within a reasonable time
is not thereby waived.

[10] ID. RESCISSION · - DEMAND FOR POSSESSION -WHEN UNNECESSARY.-A vendee under a contract of sale is not required to demand possession before rescinding the contract for failure of the vendor to deliver possession as required by the contract, where it was definitely understood by both parties that the vendor could not give possession.

APPEAL from a judgment of the Superior Court of Los Angeles County. J. W. Curtis, Judge Presiding. Affirmed.

The facts are stated in the opinion of the court.

W. N. Goodwin and Goodwin & Morgrage for Appellant. Gibbon & Shelton and W. C. Shelton for Respondent.

OLNEY, J.-This is an appeal from a judgment for the plaintiff in an action brought upon the alleged breach of a contract for the sale of real property to recover payments on account of the purchase price made the defendant as vendor. The facts are practically undisputed, and are these:

The defendant by written contract agreed to sell to one Reynolds a certain forty acres of land in the oil district of Kern County for twenty-five thousand dollars. Although it is not so specified in the contract, which calls directly for the sale of the land as distinguished from a sale of the defendant's title, the land was government land and the defendant's only title thereto was under an unpatented mineral location. Two thousand five hundred dollars of the purchase price was paid down, and the balance was to be paid in subsequently maturing installments. Upon the payment of the last installment, the vendee was to receive a quitclaim deed to the property. Time was expressly made of the essence of the contract, and it was also provided that the buyer should be entitled to immediate possession and to the right to take oil from the property. Shortly after the making of the contract, Reynolds, the buyer, assigned it to the Consolidated Midway Oil Company.

Not long after the execution of the contract and before the date fixed for the payment of the first deferred installment of the purchase price, it was found that the land was, and since before the execution of the contract had been, in the adverse possession of others than the defendant, and that, because of this adverse possession, the vendee and his as