Opinion
Department Two
Appeal from a judgment of the Superior Court of Kern County and from an order denying a new trial. A. R. Conklin, Judge.
COUNSEL:
The obligation to use diligence to sell the land within a year was a condition precedent and must be shown by the complaint to have been performed.) Code Civ. Proc., sec. 457; Cowan v. Phenix Ins. Co ., 78 Cal. 181; Barron v. Frink , 30 Cal. 489.) If the finding that appellant's obligation to pay eight hundred and thirty-five dollars was not dependent on the sale be true, the instrument casts no obligation upon plaintiff at all. (Manly v. Howlett , 55 Cal. 96; Sloss v. Allman , 64 Cal. 48.) Relief must not necessarily be denied because there is a conflict of testimony. (Sullivan v. Moorhead , 99 Cal. 161; Wilson v. Moriarty , 88 Cal. 211; Higgins v. Parsons , 65 Cal. 280; Cleghorn v. Zumwalt , 83 Cal. 156; Ward v. Waterman , 85 Cal. 503.)
T. W. Lockhart, and C. E. Arnold, for Appellant.
C. C. Cowgill, and J. W. Wiley, for Respondent.
As it is clear from the instrument that the eight hundred and thirty-five dollars should be paid in one year without regard to the sale of the land, no averment was necessary that the promise had been fulfilled. (3 Am. & Eng. Ency. of Law, 909.)
JUDGES: Britt, C. Vanclief, C., and Searls, C., concurred. Temple, J., McFarland, J., Henshaw, J.
OPINION
BRITT, Judge
Plaintiff recovered judgment for the sum of eight hundred and thirty-five dollars and legal interest thereon from November 23, 1893, found by the court to be due to him from defendant upon the following written instrument:
" I hereby promise to pay George H. Deacon, not later than one year after date, the sum of eight hundred and thirty-five dollars; said sum to be sooner paid if realized from the sale of the southwest quarter of the southeast quarter of section six, township thirty-one S., range twenty-nine east, which said tract of land I hereby place in the hands of said Deacon exclusively for the said term of one year, for sale at a minimum price of forty-five dollars per acre. Said Deacon to receive a commission on said sale of five per cent. Said Deacon to use diligent effort to obtain the best price possible in excess of said price of forty-five dollars per acre.
Nov. 23, 1892.
H. A. Blodget."
The complaint -- filed March 21, 1894 -- set out a copy of said instrument, and alleged its execution by defendant, and that no part of said sum of eight hundred and thirty-five dollars has been paid, but contained no averment that plaintiff had sold or endeavored to sell the land therein described. Defendant contends that the pleading was insufficient; that the contract imposed on plaintiff the obligation to use diligent effort to sell the land before the expiration of one year at forty-five dollars per acre or more, and that he should have alleged such effort in the complaint. This is so if such endeavor on the part of plaintiff is a condition precedent to the duty of defendant to pay said sum of eight hundred and thirty-five dollars, but we think it clearly is not such a condition. Stipulations in a contract are not construed as conditions precedent, unless that construction is made necessary by the terms of the contract. (Front Street etc. R. R. Co. v. Butler , 50 Cal. 577.) The instrument sued on contains two engagements on the part of defendant: one to pay plaintiff the sum of eight hundred and thirty-five dollars not later than one year from date; the other authorizing plaintiff to sell the land described; and the only connection or dependence between them is that the accomplishment of a sale in virtue of the latter would entitle the plaintiff to earlier performance of the former; plaintiff's obligation to use diligence relates entirely to the second contract and not to the first.
[44 P. 160] One or two other points are made, but they are unimportant; we find no error in the record available to appellant. The judgment and order should be affirmed.
For the reasons given in the foregoing opinion the judgment and order are affirmed.