The Court was correct in finding that the note was payable four months after date. This is according to the evidence. As to whether the word is " sight" or " date," counsel disagree; we have, therefore, stipulated to make the original a part of the record, for an inspection of the same.
" That the demand for payment of the note and the tender of the deed, was made before the note was due; and the plaintiff was not bound, at that time, to receive the deed and pay his note."
This point rests, for its truth and importance, upon the one last above named. For, if the word " date" is in the original, instead of " sight," then this point is untrue, because it is proven that a demand was made on the plaintiff June 21, 1850. This was the last day of grace. The note was dated February 18, 1850, due four months after date, consequently June 21, 1850, was the proper day to make the demand; besides, it was demanded again some four or six weeks afterwards, and the deed tendered and payment again refused.
" That the argument that the length of time which elapsed without payment of the balance of the purchase-money demands the inference that the contract has been abandoned, is of no force. It was within the power of the vendors, or their assigns, to have rendered the time as short as they chose by a prompt enforcement of their lien for the purchase-money."
The language above is taken from the opinion of this Court, rendered in 4 Cal. 112; and, did we depend upon " inferences," drawn from the appellant's non-performance of his part of the contract, we should fear that we had failed to show such an abandonment of the contract as this Court would recognize.
But we do not depend upon inference and vague conclusions; we depend upon the absolute proof that appellant declared his own insolvency, and that " he would give up the contract."
" That the contract between the plaintiff and C. Covillaud & Co. was a joint contract, and the payment of the balance of the purchase-money to C. Covillaud was binding on all the former copartnersor joint-tenants; and they were all concluded by it."
This may be perfectly good law, but the facts in this case render its application a legal impossibility.
Our points are the following:
This action is barred by the Statute of Limitations, more than four years having elapsed after the cause of action accrued, and before the commencement of this suit; and, the same having been pleaded in the answer, must operate as a complete and final bar to this action.
The fact is undeniable, that more than four years elapsed after the cause of action matured, and before the commencement of this suit. How, then, can the defendants, Ramirez, Sampson and Sampson, be held liable in this action? The appellant answers, " by the act of C. Covillaud in receiving the money, August 16, 1853." But we insist that the act of C. Covillaud, done in his own name, and without authority from the other defendants, and against their express wishes, cannot revive this contract as against them, so as to take the case out of the statute. The 31st Section of the Statute of Limitations settles the point. It is this: " No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this statute, unless the same be contained in some writing signed by the party to be charged thereby."
But considering this point independently of the statute, the authorities clearly establish this doctrine: That one of several joint obligors cannot, without due authority, continue or revive a cause of action as against his co-obligors; no agency, in such cases, being presumed, as in the case of partnerships. (Dunham v. Dodge, 10 Barbour's Sup. Court Rep. 566; Lewis v. Woodworth, 2 Comstock, 512; Willis v. Green, 5 Hill, 232.)
The defendants acted promptly, and up to the letter and spirit of the contract. The plaintiff not only failed to pay the note at maturity and accept the deed, but he positively refused, not only once, but he refused a second time, and, subsequently, proclaimed his own insolvency and announced his abandonment of the contract.
The rule in equity is this: Where either party has acted punctually and in good faith up to the letter and spirit of the contract, and the adverse party has refused to comply, the party thus complying is discharged from the contract as against the partyin default. (Lloyd v. Collett, 4 Brown's Chancery Rep. 469; Drew v. Duncan, 11 Howard's Practice Rep. 279; Benedict v. Lynch, 1 Johnson Chan. 370.)
The common error into which the bar have fallen, that time is not of the essence of the contract, grew, in a great measure, out of a mis-reported opinion of Lord Hardwicke. And this error is detected and exposed, and a new rule laid down in the note to the above-cited case of Lloyd v. Collett. See, also, Spurrier v. Hancock, 4 Ves. 667; Harrington v. Wheeler, 4 Ves. 686, and note; 2 Stor. Eq. Jur. Sec. 776 and note.
It is well settled in equity, that " a party cannot be permitted to lie by and speculate on the rise of the estate." (1 John. Ch. 378; Alley v. Deschamps, 13 Ves. 228.)
JUDGES: The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.
OPINION
MURRAY, Judge
This was an action in the Court below, to enforce a specific performance of a contract for the sale of lands. The record contains some eight assignments of error, all of which will not require examination.
From a personal inspection of the original, we are satisfied that the note executed by defendants was payable four months after date, and not after sight. From this it would follow that after the tender of the deed, and the demand and refusal of payment by the plaintiff, he had forfeited his right to insist on a performance of the contract.
From what appears in the record, the defendants were tenants in common, and not partners, and, therefore, not bound by the act of Covillaud in accepting the balance of the purchasemoney. (See 10 Barbour, S.C. Rep. 566; 2 Comstock, 512; 5 Hill, 232.) So far as Covillaud was concerned, he might bind his own interest in the land, and if the defendants had been partners, they would have been equally bound by the rule that one partner is the agent for the whole firm, and may, in such capacity, bind them by his acts; but in the case of lands or a chattel held by several as co-tenants, the rule is different.
In addition to this, we think the cause of action is barred by the Statute of Limitations, and that the facts of the case go far to make out an abandonment of the purchase by the plaintiff.
This view of the case renders it unnecessary to consider the other points of the case.
Judgment affirmed.