Benson

I concur in the judgment, and what is said by Mr. Justice Van Fleet. If Benson had repudiated his contract entered into with Shotwell, for the sale of this land, then Shotwell would have been entitled to recover from Benson the amount of money he had paid thereunder, less the actual damage sustained by Benson by reason of any breach of the contract committed by Shotwell. (Shively v. Semi-Tropic etc. Water Co., 99 Cal. 260 , and cases there cited.) Benson’s conduct in bringing this action was, in effect, a repudiation of any rights of Shotwell under the contract. It was as substantial and effectual a repudiation as we can imagine. It necessarily follows that defendant in this action is at least entitled to recover the money he has paid to plaintiff under the contract, less *169 the damage suffered by reason of any breach thereof; and to this extent the questions as to whether plaintiff had a good title to the land, or was able to give defendant actual possession thereof, or made a good and valid tender of the deed, are entirely immaterial as I view the case, and the decisions of this court bearing upon the principles here involved. This is the first case coming before us where a…

This is the second appeal in this case. The first appeal was from a judgment in favor of *165 plaintiff, which was reversed, and the cause was remanded for a new trial. ( 87 Cal. 49 .) On the second trial, the plaintiff again recovered judgment, and the defendant appeals from the judgment and an order denying his motion for a new trial.

The facts are sufficiently stated in the opinion of the court on the former appeal. On that appeal it was determined, as matter of law, that, by the terms of the contract in question, defendant was entitled to a good paper title of record, and was not bound to accept a title resting .on matters dehors the record; that the title tendered by plaintiff was not such as was required by the contract; that defendant was entitled to receive an actual possessio pedis of the whole lot, and was not bound to accept a constructive possession by attornment of tenants; and that, the attempted delivery of possession did not meet the requirements of the contract. The facts disclosed by the record on this appeal are, in substance, the same as those which were before the court on the former appeal; and the propositions of law there decided are therefore the law of…