p. 405when due, and should the same remain unpaid for three days thereafter, the said lessor, his. agent, attorney or assigns may enter into any place or store where said goods and chattels are and with such force as aforesaid, take possession thereof, and at option terminate this lease, which is hereby made assignable by the first party.
“ It is stipulated and agreed that if the above described rents are fully paid as specified, in United States gold coin, all the machinery, boiler, etc., therein described, or in any way belonging, or connected therewith, shall be and become the property of the second party without further consideration or payment to the first party, or his assigns.
“ In witness whereof, the parties to these presents have hereunto interchangably set their hands and seals the day and year first above written.”
The commencement of the lease was subsequently changed to the 3d of July, 1863, thus making it expire November 3d, 1863. The plaintiffs took the engine to San Mateo County, and used it in mining.' About the first of October, 1863, the defendants went to the mine and took away the engine, and carried it to San Francisco. The plaintiffs sought in this action to recover judgment for a return of the property, or if return could not be had, for twelve hundred dollars, the amount of purchase money they had paid, and for damages. The defendants recovered judgment, and the plaintiffs appealed.
The other facts are stated in the opinion of the Court.
W. W. Chipman, for Appellants,
argued that the agreement was a sale and merely gave the vendor security for the purchase money, and that it was the duty of the vendor to have either foreclosed by judicial proceeding or to have proceeded to a sale of the property upon public notice at public auction, and cited Wilson v. Brannan, 87 Cal. 258 . He also argued that time was not the essence of the contract, and that where time admitted of compensation, as it always did where money was not paid at a particular pay, it was never essential, nor
p. 406were prior payments forfeited nor the bargain rescinded by a failure to pay on the day stipulated, and cited Gillett v. Maynard, 5 John. 87 ; Powers v. North, 15 Sergt. & Rawle, 16 ; Franklin v. Miller, 4 Adolph. & Ellis, 599 ; Holdridge v. Gillespie, 2 John. Ch. 30; and Henry v. Davis, 7 John. Ch. 40.C. Hartson, for Respondents,
argued that if the agreement was a lease, then respondents had a right to reclaim the property, and that it was not a mortgage, as appellants had no property in the engine to mortgage; but that if it was a conditional sale, then the conditions precedent to title vesting had not been complied with, and on the last proposition cited Segman v. Burnett, 17 Mass. 269 ; Story on Sales, Secs. 251, 252 ; 1 Young & Collyer, 415 ; 1 Sugden on Vendors,"357.
The contract in question was substantially a contract of sale. Such must be the legal construction upon the face of the instrument evidencing the agreement. The parties call it a lease, but such is not the legal effect. There were certain stipulations, intended, doubtless, as security for the payment of the purchase money, among them, for a right to retake possession in case of default in any of the payments, and an option in the vendor to terminate the contract. One thousand dollars were paid on delivery of the property, (a steam engine, etc.,) and the first monthly instalment of two hundred dollars was paid when due ; but there was a default in the payment of the second and third monthly instalments, which fell due on the 3d of September, and 3d of October, respectively. More than three days having elapsed after the October payment fell due," the vendor, upon the ninth of that month, in pursuance of the stipulations of the contract, took possession of, and removed the property. On the 3d of November, the last instalment of three hundred thirty-five dollars fell due, and, on that day plaintiffs tendered the full amount due, including the two preceding payments, and demanded the property. We think the
p. 407District Court erred in holding time to be of the essence of the contract, and the judgment based upon that idea is, therefore, erroneous. There is nothing in the agreement to show that the parties contemplated, that, upon default in any one of the payments, the vendors should have the property and the money already paid by the vendees. There must be something in the contract clearly indicating such an intention to justify the supposition, that time is of the essence of the contract, and that, in default of payment of one instalment, all prior payments are to be forfeited. The rule in this class of agreements is indicated in
Gibbs v.
Champion, 3 Hammond, 336 ;
Decamp v.
Feay, 5 Serg. & Rawle, 323
; Gillett v.
Maynard, 5 John. 87 ;
Raymond v.
Burnard, 12 John. 275 .
Admitting that the vendor was authorized to retake the property upon default and hold it for his security, still—unless the contract was rescinded—upon the full payment of the price it would become the property of the vendees. There is also, it is true, a stipulation that the vendor might “ at option terminate the lease.” This, if it means anything more than to terminate the possession for the time being, is something in addition to retaking possession of the property, and may, perhaps, be construed into a right to rescind the contract. If so, then the vendor might take the property and have it sold in a proper proceeding to pay the balance due him, or he might take possession, and at the same time rescind the contract. But this involves no forfeiture of the amount paid, for to rescind the contract it would be necessary to return the twelve hundred dollars already received. The party rescinding must put the other party in statu quo. To rescind a contract is to annul it, and claim nothing under it. In this case the vendor does not appear to, have rescinded, but to have claimed both the property, and the money already paid in pursuance of it. This he cannot do. If the contract has been rescinded, the plaintiffs are entitled to recover the money paid. If the contract was not rescinded, the vendees became entitled to the possession upon payment of the full amount due.
We have assumed that a tender was made, because the evi
p. 408dence shows that fact, although it is not one of the facts found by the Court. Upon the view taken by the Court, a finding upon that point was not regarded as material. There was an exception for want of a finding on this point, although not strictly, in proper form. A party requiring a finding upon a particular point should specify the point without dictating the terms of the finding. In this case, for instance, the appellants should have requested the Court to find, whether a tender of the amount due had been made, and when, etc.
(Hidden v.
Jordan, 28 Cal. 304 , 305.)
The judgment must be reversed and a new trial had, and it is so ordered.