Hay

On February 13, 1909, a written agreement was entered into between the parties to this action, by the terms of which appellants agreed to sell and respondent agreed to buy, for the sum of seven thousand five hundred dollars, certain real property, in the city of Marysville. Nine hundred dollars was paid by respondent at the time of the execution of the agreement, the balance being payable in monthly installments. In addition to the first payment of nine hundred dollars, plaintiff claims to have paid nine hundred dollars, and defendants admit receiving eight hundred dollars, but whether during the life of said contract or under a succeeding one does not clearly appear. On the 4th of March, 1910, a second contract was entered into for the sale of the property, at a consideration of $5,893, payable in installments. Default being made by plaintiff in all or some of these payments, on May 23, 1910, a third contract was executed, the purchase price being specified as $5,916. On this contract also default was made by plaintiff.

On October 22, 1910, appellant, Martin B. Casey, as party of the first part, J. Boss Traynor, as party of the second part, and respondent, Joe Hay, as party of…

I dissent from the order denying a rehearing in the supreme court. There is no support in the evidence for the finding of the trial court “that there was no consideration for the waiver of the rights of plaintiff contained in said contract,” meaning the contract of October 22, 1910, between Martin E. Casey, J. Boss Traynor, and the plaintiff Joe Hay. The contract itself shows a valuable consideration in the mutual agreements of the respective parties. (Gallagher v. Equitable G. L. Co., 141 Cal. 699, 707 , [ 75 Pac. 329 ] ; Siddall v. Clark, 89 Cal. 321 , [ 26 Pac. 829 ].) It was a complete novation and a settlement of all previous transactions and obligations between Hay and Casey. The condition therein stated upon which the money was to be paid to Hay never happened and never can happen. The obligation is at an end. Unless it has suddenly become the law that contracts made freely and for a valuable consideration do not fix the rights of the parties under it, the decisions of the trial court, of the district court of appeal in affirming that judgment, and of this court in denying a rehearing, are erroneous.