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nation of plaintiff's interest under said contract by said notice. there became due to the plaintiff on the 5th day of November, 1901. the sum of $843, no part of which has ever been paid to the plaintiff and the whole thereof is now due, owing and unpaid from the defendant to the plaintiff."

A general demurrer was interposed to each count of the complaint and sustained as to the first two.

The answer to the third count consists of a denial of performance of the contract by the plaintiff without assignment of any particular breach, and of a counterclaim for the sum of $147.15, due to the defendant under the terms of the contract for papers sold to the second party.

Upon the issues thus made the court finds, in effect: (1) That the plaintiff has not performed all the obligations of the contract, but has failed and refused to perform “certain obligations and conditions of said agreement by him to be kept and performed"; (2) that it is not true "that there became due to plaintiff on the 5th day of November, 1901, or any other time, or at all, the sum of $843, or any other sum"; (3) that on November 5th the defendant tendered to plaintiff $1.50 per name for all bona fide subscribers to the Evening Express and then and there demanded of plaintiff to turn over to the defendant the names of such subscribers, but the plaintiff refused to accept the tender or to turn over the names; and (4) that the allegations of the defendant's counterclaim are true. Upon a fair construction of these findings, it must be assumed that the only breach of the contract on the part of the plaintiff was the refusal to turn over the names of the subscribers referred to in the third of the findings enumerated; and in this connection, it appears from the statement on motion for new trial that "it was stipulated that the defendant paid out and incurred a sum not exceeding $60 to obtain through its own agency the list of subscribers on the books of the plaintiff." This stipulation was offered in evidence, but excluded by the court, the plaintiff excepting; and this is assigned as error by him. But the error, if any, is immaterial, as the stipulation itself may be considered as of equal value as a finding. The judgment is that the plaintiff take nothing by his action, and that the defendant recover the amount of its counterclaim.

The points urged by the appellant are: That the demurrers to the first two counts of the complaint were improperly sustained; and that on the findings there should have been a judgment for the plaintiff.

As to the first point, it may be assumed for the purposes of the decision: That the right of assignment given to the plaintiff by the terms of the contract was not a mere privilege thereafter to be conferred or not at the option of the defendant, but a substantial right regarded by the parties as valuable and as constituting part of the consideration of the contract; that the condition imposed by the contract of acceptance and approval by the defendant 'was inserted merely for the purpose of protecting the defendant against an assignment to an inefficient or otherwise objectionable purchaser; that this power could be exercised for that purpose only, and not arbitrarily for the purpose of evading the provisions of the contract; and hence, that in the present case, under the circumstances alleged, the defendant was under obligation upon demand to accept and

approve the purchasers referred to in the complaint. But the fault of the complaint is that it is not alleged that assignments to the purchasers as distinguished from agreements looking to that end were in fact made, or that the acceptance and approval of the assignments were either demanded of or refused by the defendant, The most that can be gathered from the complaint is that the defendant, by certain representations or statements-which were not in themselves actionable prevented or persuaded the intended purchasers from making the purchases; from which it must be inferred, either that there were no actual contracts between them and the plaintiff or that the latter voluntarily released them. Had the assignments been consummated and presented to the defendant for acceptance and approval, and such acceptance and approval been refused by the defendant, a different case would be presented. We are of the opinion, therefore, that the demurrers to the first two counts of the complaint were rightly sustained.

As to the second point, it would seem clear on the express allegations of the complaint showing an indebtedness at the time of the termination of the contract from the defendant to the plaintiff in the sum of $843 for the "562 names of bona fide subscribers" then on the books of the plaintiff-which are not denied by the answerthat the plaintiff was entitled to judgment for that amount, less the sum of $147.15, counterclaimed by the defendant, with damages not exceeding $60 for expenses incurred by the defendant in getting the names of the subscribers; and we are at a loss to understand upon what principle this relief was denied to him. It is clear, ́ however, that the judgment must rest on one of two propositions: The one, that the admitted obligation of the defendant to pay the amount alleged was extinguished by the tender found to have been made by it; the other, that the obligation was extinguished by the refusal of the plaintiff to turn over to the defendant the names of' the subscribers. But we are of the opinion that neither of these propositions can be maintained.

As to the first, an obligation for the payment of money is not extinguished by a tender, unless the money is deposited with some bank as prescribed in section 1500 of the Civil Code.

As to the second, it may be assumed that the plaintiff was under obligation to turn over to the defendant the names of subscribers and that in refusing to do so he was guilty of a breach of the contract; and further, that until this information was given to the defendant or otherwise obtained by it, it would be justified in refusing to perform. But here it appears by stipulation that the information was in fact obtained by the defendant at an expense of not more than $60 within a short period after the plaintiff's refusal and before the commencement of the suit-which did not occur until about nine months afterwards. The case presented is, therefore, that the defendant had received from the plaintiff under the contract the sum of $843, which it was under admitted obligation to pay; and the contention is that by reason of the plaintiff's breach of the contract--by which it was not damaged in excess of $60 and which could be fully compensated by that amount or lessthe ongation was extinguished and the right of the plaintiff forfeited.

This contention can bé maintained only upon the broad ground that any breach of the terms of a contract by a party deprives him of the right to maintain an action against the other party to enforce the obligation of the latter. But this is not the law; nor has it ever been, either at law or in equity. At law it was only where the obligation broken by the plaintiff was a condition precedent to defendant's obligation that the breach was a defense. Nor was any obligation of the contract regarded as a condition precedent unless made so by the express terms of the contract, or by necessary implication. (1 Chitty's Pl., 321-2; Civ. Code, secs. 1439, 1498; Code Civ. Proc., sec. 457; Anson on Contracts, 376 et seq., 287, 303 et seq., 308 et seq.) But here the obligation broken is not expressed in the contract and was probably not thought of by the parties, but is a merely implied obligation added to the contract by construction of law. (Civ. Code, secs. 1656, 1655, 1643.) It could not, therefore, have been regarded by the parties as a condition precedent to the defendant's obligation.

But under our system, the distinction between legal and equitable suits has been abolished, and in any suit the plaintiff is entitled to either legal or equitable relief, or both, as may be required by the case made (Grain v. Aldrich, 38 Cal. 514); and where equitable principles will apply they will be determinative of the case. Hence, in our system the rules formerly prevailing at law have been essentially modified by the principles of equity, and, to the extent the latter will apply, superseded. But in equity the failure to perform an obligation of the contract, whether a condition precedent or otherwise, where "it is only partial and either entirely immaterial or capable of being fully compensated" has always been regarded as insufficient to constitute a defense. (Civ. Code, secs. 3392, 3386.) And this under our system has become a general principle of the law. Nor, in view of the settled principles of equity, could it be otherwise; for in case of a partial breach of the contract, as in this case, the defendant has received and voluntarily retains so much of the, consideration and has become subject to a corresponding obligation; and hence in cases to which the strict legal rule would apply, if any, a forfeiture of the plaintiff's corresponding right would occur; against which equity on other principles would relieve. (Civ. Code, secs. 3275, 1477.)

We are of the opinion, therefore, that judgment should be entered in favor of the plaintiff for the sum of $843, less the sum of $147.15. and less also the sum of $60-if the plaintiff be willing to admit that to be the amount of the expenses incurred by the defendant in obtaining the names of subscribers--and otherwise, the amount of such expenditures as may be found by the court, together with interest on the balance from the date of the commencement of the suit, or from the date of such expenditures, as the case may be.

The judgment and order appealed from are reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion.

We concur:

GRAY, P. J.
ALLEN, J.

SMITH, J.

Civil No. 263. Second Appellate District. October 18, 1906. THE LUDINGTON EXPLORATION COMPANY et al., Plaintiffs and Respondents, v. LA FORTUNA GOLD AND SILVER MINING COMPANY, an Arizona Corporation, a South Dakota Corporation of the same name, NEUMANN, D. R. OLIVER, and Certain Fictitious Defendants, Defendants and Appellants.

CHANGE OF VENUE-DEFENDANT NON-RESIDENTS OF COUNTY-RIGHT TO CHANGE TO COUNTY OF RESIDENCE.-The contention that defendant corporations which are not residents of the state may be sued in any county which the plaintiffs may designate can be maintained only in a case where they are the only defendants. Where all the defendants in an action are non-residents of the county in which the action is brought, any of the defendants residing in another county are entitled to a change of the place of trial, notwithstanding the opposition of the other defendants.

Appeal from the Superior Court of Los Angeles County-D. K. Trask, Judge.

For Appellants-E. J. Baumberger.

For Respondents-A. D. Warner.

BY THE COURT.

Appeal from an order denying the motion of corporation defendants and Neumann to change the place of trial from the county of Los Angeles to the city and county of San Francisco.

It appears from the defendants' affidavits: That the two corporations have their principal place of business in the city of San Francisco, and that that is the place where the contract was made and is to be performed; that defendants Neumann and Oliver are both residents of San Francisco, and were so at the time of the beginning of this suit; and that the fictitious defendants are not, nor is any one of them, a necessary party to this action, nor have they any interest therein.

The briefs of the counsel are largely devoted to the proposition of the respondents, that the corporation defendants are non-residents of the state and may therefore be sued in any county which the plaintiffs may designate. But assuming that this is the case, the right of the plaintiffs to sue them in any county could exist only in a case where they were the only defendants (Code Civ. Proc., sec. 395), and here it appears that there are two other defendants, Neumann and Oliver, both of whom are residents of the state.

We may disregard, also, as a point that need not be decided, the claim of the appellants that under the provisions of article XII, section 16, of the constitution, these corporations have a right to a trial of the case in the city and county of San Francisco; and, on the other hand, the fictitious defendants named in the complaint may be disregarded as not being parties to the action, or, at least, as not being necessary or proper parties, or interested in the action. Of the remaining defendants, Oliver does not join in the motion; but it appears that he, as well as Neumann, the moving defendant, is a resident of the city and county of San Francisco. The case, therefore, comes directly within the decision in Wood, Curtis & Co. v. Herman Mining Co., 139 Cal. 713, where it is held that where

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all the defendants in an action are non-residents of the county in which the action is brought, any of the defendants residing in another county are entitled to a change of the place of trial, notwithstanding the opposition of the other defendants; and upon the authority of this decision, the order appealed from must be reversed. It is so ordered.

Civil No. 259. Second Appellate District. October 18, 1906. NELLIE L. ALLEN, Plaintiff and Respondent, v. W. S. BRYANT and Wife, Defendants and Appellants.

ACTION TO QUIET TITLE-DEED EXECUTED UNDER MISTAKE AND UNDUE INFLUENCE.-In this action to quiet title it is held that the deed in question was the result of a mistake which was known to the grantee, if not produced by the latter's misrepresentations made with the view of obtaining the deed, and it was obtained by undue influence.

Appeal from the Superior Court of Los Angeles County-N. P. Conrey, Judge.

For Appellants-Walpole Wood, Jesse F. Waterman.

For Respondent-Bicknell, Gibson, Trask, Dunn & Crutcher.

Appeal from a judgment for the plaintiff, on the judgment roll, with bill of exceptions. The suit was brought to quiet the plaintiff's title to an undivided one-half of the tract of land described in the complaint and referred to in the answer as the "Cherrioto Ranch".

The plaintiff derived her title to an undivided one-half of the land in question under a deed of gift from her husband, Charles Allen, to whom it had been conveyed by the defendants by deed of date July 22, 1904. The defense is that this deed was fraudulently obtained under the circumstances set up in the answer.

The case as presented by the pleadings, findings and stipulations of the parties, is as follows:

1. The tract described in the complaint was purchased by Bryant from one Cherrioto, who conveyed the same to him by deed of date January 9, 1904, subject to a mortgage executed by him and his wife to secure the purchase money thereon, amounting to the sum of $22,500, with interest. There were some other instruments subsequently executed to correct mistakes or supposed mistakes in the deed and mortgage; but these need not be regarded.

2. At this time Bryant and Allen were associated together in the business of subdividing and selling a tract of land known as the "Pardee Tract" under an agreement entered into by them of date December 14, 1903. This tract belonged to Bryant, and by the terms of the contract, Allen was to have charge of the subdivision and sale of the tract, and the proceeds of the sales of lots, after payment of the expenses and amounts due thereon to Bryant, were to be equally divided between the two parties.

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3. This being the relation of the parties, Bryant and Allen, it is alleged in the answer, entered into another contract that Bryant should convey to Allen an undivided one-half of the ranch, subject to the mortgage, to be operated and ultimately subdivided and sold

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