statute, the restoration of the landlord to the possession of the premises (Arnold v. Krigbaum, 169 Cal. 143, 146 Pac. 423, Ann. Cas. 19165, 370), with all rights to the use and occupation thereof, which would include the growing crops thereon, unless the lessee or those claiming under him see fit to obtain relief as provided in the statutes. It follows that the court erred in giving judgment for the plaintiff.

The judgment and order are reversed.

We concur: VICTOR E. SHAW, Judge pro tem.; SLOSS, J.

guilty of unlawful detainer who, in person, very object of the above provisions of the or by subtenant, continues in possession, without permission of the landlord, after de fault in payment of rent and after 3 days' notice in writing requiring its payment, or the possession of the property, shall have been served upon him, and "if there is a subtenant in actual occupation of the premises, also upon such subtenant." The plaintiff in this action was, by his own testimony, not in the "actual occupation" of the premises, within the meaning of this statute. Subdivision 3 provides that within 3 days after service of notice the tenant, or any subtenant in actual occupation of the premises, may pay the rent and save the lease from forfeiture, of which opportunity for relief neither the plaintiff nor his lessor availed himself. By section 1164 "no person other than the tenant of the premises and subtenant, if there be one, in the actual occupation of the premises when the complaint is filed, need be made parties defendant," so 1. DEEDS 116-EFFECT AFTER ACQUIRED TIthat plaintiff herein, not being in the actual occupation of the premises, was not a necessary party to that action. The judgment in that action was given May 1, 1912, in accordance with section 1174. At no time within five days after such judgment did the plaintiff herein or Pierre Agoure offer to pay into

court for the landlord the amount of rent and damages and the costs of the proceeding, thereupon to be restored to the possession of the premises, as provided in said

section.

(175 Cal. 565)

DANZIGER v. BENSON et al. (L. A. 4028.) (Supreme Court of California. June 25, 1917. Rehearing Denied July 23, 1917.)

TLE.

Under the direct provisions of Civ. Code, § 1106, a deed purporting to convey good title conveys the grantor's subsequently acquired ti

tle.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. § 330.]

2. VENDOR AND PURCHASER

ANCE OF CONTRACT-ESTOPPEL.

145-PERFORM

Where an owner agreed with his optionee's purchaser to be bound by the contract between the optionee and such purchaser, the purchaser is entitled to the deeds upon making the payments specified in his contract, although they are less than those required by the contract between the owner and the optionee.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 276.] 3. VENDOR AND PURCHASER -CONSTRUCTION.

79—CONTRACT

chaser should be entitled to any of four deeds Under a contract providing that the purupon making certain payments, but that the last deed should be delivered only upon full payment being made, the purchaser is entitled to delivery of a deed upon making the specified payments, irrespective of possible subsequent defaults.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 7, 8, 127-131.] 4. VENDOR AND PURCHASER -PERFORMANCE.

186-CONTRACT

[3] Up to this point in the proceeding the plaintiff, as subtenant, is clearly bound by any judgment affecting Pierre Agoure. So far as any hardship may be deemed to have been visited upon plaintiff by the judgment both for the possession of the land and the rent due in full satisfaction of the terms of the lease, Pierre Agoure necessarily made the lease with full knowledge on his part of the provisions of our Code with reference to one guilty of unlawful detainer because of nonpayment of rent, and plaintiff, as subtenant or as cropping contractor with Pierre, must be charged with equal knowledge that the term under which he contracted might be terminated at any time for such cause. To prevent any hardship upon just such persons as the plaintiff herein the law throws about him the protection, not only of section 1174 under which the judgment was given and by which plaintiff herein could have paid the rent within five days after judgment and obtained possession of the land, but also of secThe purchaser's waiver of a condition retion 1179, wherein one so oppressed is afford-quiring the vendor to make good title as to part ed relief against such forfeiture, upon proper of the land covered by a contract does not waive showing, if made within 30 days after judg- the provision as to the remaining land. ment, which relief plaintiff did not see fit to claim. To allow the plaintiff to claim that which he did not avail himself of at the time the statute gave him the right to claim it would be to defeat and set at naught the

Where a contract provided the vendor should make good title as a condition to payments by the purchaser, which the vendor failed to do, the purchaser does not default by subsequently failing to make installment payments. Purchaser, Cent. Dig. §§ 341, 373.] [Ed. Note.-For other cases, see Vendor and

5.

VENDOR AND PURCHASER

-WAIVER.

143-CONTRACT

Purchaser, Cent. Dig. §§ 267-270, 311.]
[Ed. Note.-For other cases, see Vendor and

6.

APPEAL AND ERROR 843(2)-REVIEW-
FINDINGS.

If the facts found by the court below support the conclusions necessary to the judgment,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

inconsistent conclusions stated in the findings | Bakersfield, with written instructions to said will be disregarded.

Appeal from Superior

Court, Kern County; J. W. Mahon, Judge.
Action by J. M. Danziger against E. M.
Benson and others. Judgment for plaintiff,
and the named defendant appeals. Affirmed.
W. W. Kaye, of Bakersfield, for appellant.
Borton & Theile, of Bakersfield, and N. P.
Moerdyke, of Los Angeles, for respondents.

bank to deliver said deeds to Benson upon payment of $12,160, of which $2,000 was to be paid on delivery of the abstract, $3,760 within 30 days, and four sums of $1,600 each were to be paid within 1 year from said date. The writing also instructed the bank to deliver any one of said deeds upon the making of any one of the $1,600 payments. Thus, it will be observed, Benson could not obtain a deed for any quarter section of the land until he had first paid the total sum of $7,360, whereas his vendee, Danziger, was en

titled to a deed for a quarter section under the sale made to him by Benson, upon the payment of only $5,600.

After Danziger had made his first two payments for Benson, amounting to $5,760, he discovered this discrepancy. In order to obviate it he and Mushrush, Humphreys, and Sprague, on July 19, 1910, made an agreement, reciting the agreement between Benson and SHAW, J. On April 18, 1910, the defend- Danziger, and that Mushrush, Humphreys, ants, Mushrush, Humphreys, and Sprague, and Sprague desired to join therein, and pro· were the owners of a section of land de-viding that in consideration of the sums alscribed as section 36, township 12 north, range 22 west, in Kern county. This case involves the rights of the respective parties under certain agreements for the sale thereof. It is a somewhat unusual complication that has caused the litigation. It may best be shown by a statement of the facts taken from the findings.

On the day above mentioned Benson, who had an option from Mushrush, Humphreys, and Sprague for the purchase of the land, agreed to sell and convey said section to Danziger for the sum of $22,400. The agreement provided that four deeds, each for a quarter section, should be signed and acknowledged by Benson and placed in escrow with the Bank of Bakersfield, together with $2,000 in cash; that the remainder should be paid in three installments, $3,760 in 30 days, $8,320 in 6 months, and $8,320 in 1 year. The agreement further provided that when Danziger should have paid as much as $5,600 of the price he should be entitled to have delivered to him one of the deeds for a single quarter section so put in escrow, and that for each subsequent amount of $5,600 paid he should be entitled to another deed for another quarter section, except that the last deed should be delivered only upon the full payment of principal and interest of the price. The deeds were signed and acknowledged, and the money and deeds and a copy of the agreement, together with written escrow instructions in accordance therewith, were placed in escrow with the Bank of

Bakersfield.

Four days afterwards, on April 22, 1910, Mushrush, Humphreys, and Sprague, at the instance of Benson, signed and acknowledged four deeds, each purporting to convey a different quarter section of said land to Benson, and deposited the same with the Bank of

ready paid to Mushrush, Humphreys, and Sprague on account of the sale by them to Benson, they should be bound by all of the terms of the contract between Benson and Danziger as though they were originally parties thereto, and that they would allow all deeds deposited by them with the Bank of with said bank so long as the said Danziger Bakersfield for Benson to remain on deposit should comply with his agreement with Ben

son.

This agreement, together with another copy of the agreement between Benson and Danziger, was also deposited with said bank as a part of its instructions from the parties to the agreement, as agent and escrow holder. Benson was not a party to this agreement, and did not join therein.

$3,760 as provided in the agreement and es

When Danziger paid the $2,000 and the

crow instructions between himself and Ben

Son, as they amounted to more than $5,600, of one of the deeds deposited by Benson, as he thereupon become entitled to the delivery he should select. After having paid the said sums Danziger demanded of the bank the delivery of the deed from Benson to himself and of the deed from Mushrush, Humphreys, and Sprague to Benson for the southwest quarter of the section. The bank refused to deliver either of the deeds, except upon the payment of an additional sum of $1,600 required by the escrow instructions given to it by Mushrush, Humphreys, and Sprague upon the agree ment between them and Benson. Mushrush, Humphreys, and Sprague approved this refusal, and repudiated the said agreement of July 29, 1910, with Danziger. They, and Benson also, thereupon claimed that Danziger had no right to a delivery of either or any of the deeds, except upon the additional payment of $1,600. Benson never paid, or

offered to pay, either of the four installments to that deed. Thereupon, at his election, the of $1,600 provided for by the agreement between himself and Mushrush, Humphreys, and Sprague. The bank was also made a party to the action, but it made no active defense, and submitted the deeds to the jurisdiction and control of the court.

The court below gave judgment in favor of the plaintiff, directing that the deeds from Mushrush, Humphreys, and Sprague to Benson, and from Benson to Danziger, each for the southwest quarter of the section, be delivered to Danziger, that being the relief prayed for in the complaint. Benson alone has appealed; the other defendants being content with the judgment.

contract became a separate agreement for the sale of the quarter section he should select, and the price, as to that quarter, was fully paid. He was entitled to immediate delivery of the deed and to a good title. There is nothing in the contract, or in any of them, to the effect that a subsequent default in the remaining installments would terminate the right to the portion that is paid for. But there was no subsequent default. The contract required a good title, or the means of obtaining it, on the part of Benson, as a condition, either precedent to or concurrent with, the obligation of Danziger to pay anything more than the first $2,000. Benson, by his failure to pay any of the $1,600 install. ments of his contract with Mushrush, Humphreys, and Sprague, had failed to make his proffered title good, and he never became entitled to demand further payments from Danziger. Danziger's waiver of the defect as to the first deed, for which he had already paid, did not operate as a waiver as to the remaining land.

The action of the plaintiff is not, as plaintiff suggests, an action of detinue for the possession of the deeds. It is an action of an equitable nature to compel the performance of the contract so far as he was entitled thereto. As the case has been presented we do not perceive that this distinction is of any importance.

[1, 2] Upon the facts we have stated, the decision of the court below that plaintiff was entitled to the delivery of the two deeds required to perfect his title to the quarter section of land was sound. The agreement of Benson entitled Danziger to the Benson deed upon the payment of $5,600. It also bound Benson to convey a good title by that deed. But this was a condition which Danziger had the right to waive, if he chose. His right to [6] It is immaterial whether the several the Benson deed cannot be denied. If this conclusions of law stated in the decision of deed had been delivered, it would have vest- the superior court, whether formally stated ed all the right, title, and interest of Benson as conclusions or not, are consistent with each in Danziger, and its effect would be that any other. The ultimate conclusions of the court title afterward acquired by Benson under below are those manifested by its judgment. his agreement with Mushrush, Humphreys, If the facts found support the conclusions necand Sprague would pass by operation of law essary to the judgment, inconsistent concluto Danziger. Civ. Code, § 1106. By his pay sions stated in the findings will be disrement of $5,760 and his demand for the Ben-garded. son deed, Danziger became fully entitled to it, and also became the equitable owner of the deed and of all of Benson's right, title, and interest, including Benson's right to complete the title by paying the additional $1,600 required by the agreement of Benson with Mushrush, Humphreys, and Sprague. Having already obtained their agreement to waive this payment and to allow their deed to be delivered on payment of the $5,600, which had then been paid to them, the equitable right of Danziger to both deeds was complete, and the delivery should have been made accordingly. Benson is estopped by his agree ment, which contained a covenant for good title to Danziger. The other parties are estopped by their agreement with Danziger that he should have their deed upon compliance with the terms of his agreement with Benson. The act of Benson's vendors in making good his positive obligation to Danziger without requiring payment of the additional $1,600, though it did not relieve Benson of his obligation to pay them, was a benefit to him, since it performed for him his own contract to convey a good title to Danziger. No beneficial interest was left in Benson, and he had no right to object to the delivery.

[3-5] The fact that Danziger did not pay the installment of $8,320, due October 18, 1910, on his contract with Benson does not affect his right to the first deed. He had made the payments necessary to entitle him

This disposes of the appeal, so far as the relief given to the plaintiff is concerned. Mushrush, Humphreys, and Sprague filed a cross-complaint against Benson and Danziger to quiet their title to the section of land in controversy. The judgment quiets their title to the three quarter sections remaining after the conveyance of the southwest quarter to Danziger as aforesaid.

[7] Upon the facts found, this was correct. The contract between these parties was in the form of escrow instructions to the bank, accompanying the deeds of Mushrush, Humphreys, and Sprague to Benson and deposited for delivery on compliance with the instructions. These instructions provided that "each payment of $1,600 shall entitle Benson to any one of the deeds herein inclosed," and that upon failure of Benson to` make any of the payments at the times specified, the previous payments should be forfeited and the deeds should thereafter be held subject to the order of said vendors. Benson never paid, or tendered payment of, either of the installments of $1,600 as they fell due,

or at all. His right to the delivery of the | from the judgment and from an order denyremaining deeds has therefore terminated by the forfeiture, arising from his refusal to pay. Hicks v. Lovell, 64 Cal. 14, 27 Pac. 942, 49 Am. Rep. 679. He did not, even at the trial, tender further payment or present any equitable ground upon which to claim an extension of the time fixed.

[Ed. Note.-For other cases, see Municipa. left of such vehicle, and not to drive again Corporations, Cent. Dig. § 1515.] to the right until he was clear of such vehicle. Section 8. He was required to travel on the right-hand side of the street and as near the curb as possible. Section 6. In turning from one street into another he was to pass around to the right of and beyond the center of the street intersection. Vehicles traveling upon a street running northerly and southerly had the right of way over vehicles traveling upon a street running east

the corner to the plaintiff's right, fronting | right of the wagon he would not have struck north on Washington street and east on Grif- the automobile. So, also, if the defendant fith avenue. Along the Washington street had turned the corner by going to the right curb line in front of this building there were of the intersection, his automobile would not four or five auto trucks, 12 feet long, belong- have been struck by the motorcycle. The ing to the dyeworks, backed up against the disobedience of the ordinance by both of curb. These trucks had canopy tops. The them brought on this accident. It was the easterly truck was about 15 feet west of the result of their concurrent negligence, the negcorner. As he neared the corner, plaintiff ligence of each was a proximate cause, and saw that it was a "blind corner," that is, each contributed to the injury. that his vision of persons coming up the avenue from the south was obstructed. A laundry wagon, drawn by a horse, trotting slowly, was ahead of plaintiff, going in the same direction. As the wagon entered upon the intersection, the plaintiff was a little behind it, and he swerved to the right to pass, instead of to the left, as the ordinance required. The defendant came up on Griffith avenue from the south at that moment, cutting across the intersection instead of going around to the right of the center of the intersection, as the ordinance required. Defendant was slowing down because the laundry wagon was going east in front of him and obstructed his passage momentarily. Plaintiff was going at the rate of 15 or 16 miles an hour, according to his own "estimate." The plaintiff, while on his swerve to the right and as he was passing the easterly truck, first saw the automobile, and at once swung to the left to avoid it, but, as he testified, "it was too late," and the two vehicles collided. The automobile, at the instant of collision, had come practically to a standstill. It was pointed to the northwest, and the laundry wagon had passed a little to the east. The front end of the motorcycle struck the front of the automobile diagonally. The plaintiff was pitched over 3 or 4 feet to the left toward the middle of the street, and received cuts and bruises. The front right spring of the automobile was twisted around toward the right to an angle of nearly 45 degrees by the force of the collision. The plaintiff testified that when he saw the automobile and tried to get out of the way by swinging to the left, “it [the automobile] was on me in a second, and I had no time." The foregoing is taken from the testimony of the plaintiff, supplemented by other uncontradicted evidence.

[1] The defendant was under no necessity of "cutting across the corner." The ordinance required him to go around to the right of the intersection, and it was legal negligence for him to do otherwise under the circumstances. Cragg v. Los Angeles Trust Co., 154 Cal. 667, 98 Pac. 1063, 16 Ann. Cas. 1061; Harrington v. Los Angeles Ry. Co., 140 Cal. 519, 74 Pac. 15, 63 L. R. A. 238, 98 Am. St. Rep. 85.

[2] The plaintiff was also violating the ordinance in swerving to the right to pass the laundry wagon instead of to the left. The field, he said, was clear, except for the laundry wagon, at the time he started to make the swerve. If he had not passed to the

[3] Nor can it be said that plaintiff was free from negligence in crossing the intersection at a "blind corner," such as this, at the rate of 15 miles an hour, or 22 feet per second. The cause of plaintiff having no time to avoid the collision was not the speed of the automobile, for it had come practically to a stop at the instant of the collision. It was his own speed that shortened his time. The force of the impact broke the fastenings of the automobile springs, twisted them far to one side, as above stated, and carried the plaintiff several feet forward, landing him on the street, as he said, 3 or 4 feet to the right of the automobile. It is a strong probability; from these circumstances, that his "estimate" of his speed was much too low, but in view of the findings of the court we must accept his estimate as correct. A horse can travel at the rate of 15 miles an hour, and even faster, for a short time. But in the days of exclusively horse-drawn vehicles one who crossed a street at such a place going at 15 miles an hour would have been considered reckless. There have been city ordinances forbidding a team from crossing a street intersection faster than a walk. Stein v. United Railroads, 159 Cal. 371, 113 Pac. 663. Since our eyes have become somewhat accustomed to greater speed, the recklessness of 15 miles an hour may not seem so obvious, but the danger is the same. The ordinance fixing the maximum speed at 20 miles an hour is not a license to go at that speed at all times and places. Irwin v. Judge, 81 Conn. 492, 71 Atl. 572. The care required at any place on a public street is always that of a reasonably prudent person under the circumstances. Scott v. San Bernardino, etc., Co., 152 Cal. 610, 93 Pac. 677.

[4] There are occasions when a speed far below the maximum would constitute negligence. The ordinance recognizes and provides for this by requiring every person driving on the streets to do so "in a careful manner and with due regard for the safety" of other persons on the street. A speed which carries a person 22 feet in one second of time at a "blind corner," with standing auto trucks projecting 12 feet into the street, obstructing the vision of the intersecting street until the last truck is reached, and with a wagon ahead of him, is not that speed which a person exercising ordinary prudence would choose at such a place, out of due regard for his own safety, or that of others. Such speed may not be unusual at the present time, even