action will lie against the said third party on his contract to pay for the benefit of purchase. Appeal from Fifteenth District Court. Pringle & Hayne for Appellant. Jarboe & Harrison for Respondent. This was an action of assumpsit. Plaintiff was non-suited on his opening statement to the jury. The substance of the statement is as follows: One Richardson was the owner of certain valuable real estate. The plaintiff had a parol agreement with Richardson for the purchase of said real estate at $200,000. Plaintiff not being able to conveniently raise so much money, made a parol agreement with the defendant to let him have the benefit of the bargain for a certain sum. Richardson then, by direction of plaintiff and in pursuance of his agreement to that effect with plaintiff, executed a deed of the property to the defendant. Defendant refuses to pay plaintiff anything, and the plaintiff sues upon the implied contract to pay what the purchase was reasonably worth. PER CURIAM. The case of the plaintiff is not like Meyers vs. Childs, 47 Cal., 142, as supposed by the Court below. In that case the vendor of the stock repudiated the alleged contract, and so the transaction turned out to be of no benefit to the defendant there. But here the defendant did obtain an advantage and acquired the title to a large property by means of the contract made by him with McCarthy, and upon which this action is brought. We think that the views expressed by Lord Chief Justice Best, in Seaman vs. Price, 10 Moore, and by the Supreme Court of the State of Missouri, in Kratz vs. Stocke, 42 Mo. 351, are appropriate to the case before us, and upon the principles maintained in those cases the judgment given below should be reversed here. Judgment reversed and cause remanded for a new trial. Remittitur forthwith. Rhodes, J., expressed no opinion. [No. 5713.] [Filed March 26, 1878.] DOWD vs. CLARK. SPECIFIC PERFORMANCE - TENDER.-When by the terms of a lease the lessee may elect to purchase at any time during the term, upon the payment of a certain and does give notice to the lessor that he has so elected, the lessor waives the necessity of a tender before suit is brought, when he ignores the right of the lessee to purchase. sum, WHAT AVERMENTS ENTITLE A PLAINTIFF TO SPECIFIC PERFORMANCE.-It is sufficient when the plaintiff avers that he is ready and willing, and offers to comply with all the terms and conditions of the agreement, and to pay any sums that may be due the defendant under the contract. Appeal from Fifteenth District Court. Williams & Thornton for Respondent. As we construe the lease of March 27, 1866, it provides: First, that the lessee may elect to purchase at any time during the term, in which event he shall pay to the lessor during the term the sum of $6,000 in gold coin, with interest from the date of the lease at the rate of one per cent. per month, and any payments, which, in the meantime, shall have been made for rent, shall be credited on the interest; second, that if the lessee elects to purchase, he shall also pay in addition to the principal and interest, whatever sum shall in the meantime have been levied on the land and paid by the lessor for taxes from the date of the lease; third, that from the time the lessee elects to purchase, the interest shall thenceforth be paid on the first days of January and July in each year; and, if not so paid, shall be compounded at the rate of two per cent. per month, until paid; fourth, that if the lessor shall have incurred expenses by reason of the failure of the lessee to perform the covenants by him to be performed, the same shall be refunded by the lessee with interest at the rate of two per cent. per month, compounded monthly. There is no conflict in the evidence as to the fact that before the suit was brought the plaintiff notified the defendant during the term that he elected to purchase under the pro visions of the lease, and tendered the sum of $6,000 in gold coin; but the defendant refused the tender, and denied that the plaintiff was entitled to purchase under the lease. He ignored altogether the right of the plaintiff to purchase, and on well settled principles this was a waiver of the necessity of a tender before suit brought. But in his complaint, the plaintiff avers that he is ready and willing, and offers to comply with all the terms and conditions of the agreement, and to pay any sums that may be due the defendant for the purchase of said premises under the contract. This, we think, is sufficient to entitle him to a specific performance of the agreement. It is unnecessary to determine on this appeal whether the interest ceased from the time of the tender and the refusal of the defendant to recognize the plaintiff's right to purchase. Judgment and order reversed and cause remanded for a new trial. [No. 5205.] [Filed March 26, 1878.] THE PEOPLE vs. LATHAM. DELINQUENT TAXES - POWERS OF LEGISLATURE-ACT OF MARCH 28, 1874, CONSTITUTIONAL.-Section 11, Article I, and Section 13, Article XI, are not violat ed by the Act of March 28, 1874. The Legislature may levy a tax either before or after the value of property is ascertained; and the provision in the Act that the amounts that had been previously paid in pursuance of an invalid levy should be credited as a payment pro tanto is not an exemption of such property from taxation. Action to recover delinquent taxes, levied by the Act of March 28, 1874, (Stats. 1873-4, p. 746) for the twenty-fourth and twenty-fifth fiscal years. The tax is attacked on the ground that it violates Section 11, Article 1, of the Constitution-"All laws of a general nature shall have a uniform operation;" and also Section 13, Article 11- Taxation shall be equal and uniform through out the State." The objection cannot be sustained, for the statute purports to levy a tax upon all property in the State, subject to taxation for each of those fiscal years. The Constitutional provision that "All property in this State shall be taxed in proportion to its value, to be ascertained as directed by law," does not require the value of the property to be ascertained after the passage of the act fixing the rate of taxation. That requirement is satisfied by the ascertainment of the value of the property as directed by law; and the Legislature may levy the tax, either before or after the value of the property is ascertained, without any violation of the fundamental rules upon which taxation is based, or indeed any rule of sound financial policy. No portion of the property liable to taxation for those fiscal years is exempted from taxation. The provision in the act, that the several amounts which had been paid on the property, in pursuance of a previous invalid levy of taxes, should be credited as a payment, pro tanto, of taxes levied by this act, does not amount to an exemption of such property from taxation; and if that provision of the act should be construed as intending that such property would be exempt from taxation, the provision should be void, because in violation of the constitutional provision that all property in the State shall be taxed in proportion to its value. We see no error in the proceedings or judgment. Judgment and order affirmed. Remittitur forthwith. We dissent. WALLACE, C. J. [No. 5587.] [Filed March 26, 1878.] STOW vs. KIMMER. TRESPASS-WHEN ACTION WILL NOT LIE.-When the defendant is in adverse possession of lands, claiming the right of possession, and was still in possession at the time the action was brought, the plaintiff can not maintain an action of trespass or a bill to prevent the commission of supposed acts of trespass on said premises. The findings show that at the time of the commission of the alleged trespasses the defendants were in the adverse possession, claiming the right to the possession of the tract of land upon which the alleged trespasses were committed, and still continued in possession at the time of bringing the action. Under these circumstances the plaintiff cannot maintain an action of trespass, or a bill to prevent the commission of supposed acts of trespass on the premises by the defendants. Judgment affirmed. [No. 5469.] [Filed March 27, 1878.] STANWAY vs. RUBIO. On the 9th of April, 1868, George Dalton and Manuel Abril made an agreement with Miguel Moro and others, of the second part, in consideration of certain releases, to make application to purchase from the State of California, as lieu lands, Section 9, in Township 2 south, Range 13 west, in the county of Los Angeles, and when they obtained a patent for the same to execute deeds for all or any of said land in said section which may be now occupied and possessed by said parties of the second part, such conveyances to be made in severalty to each of said parties, in accordance with their respective fences and inclosures, and in accordance with the lines of their respective possessions as heretofore surveyed by Hanson, County Surveyor. Plaintiff deraigned title from Moro, one of the parties to the agreement. Rubio, the defendant, was not a party to the agreement, and claims title through Widney, who purchased from Abril. |