
    [S. F. No. 6146.
    In Bank.
    May 7, 1914.]
    WILLIAM COPPLE, Respondent, v. E. H. AIGELTINGER et al., Appellants.
    Appeal—Order Amending Conclusions op Law and Directing New Judgment.—By the express provisions of section 663a of the Code of Civil Procedure, an order vacating a prior judgment for the defendants and directing a new judgment for the plaintiff, made on the motion of the latter for amendments of the conclusions of law and for the entry of a judgment in conformity therewith, is appealable.
    Vendor and Vendee—Time for Payment of Purchase Price not Specified in Contract—Reasonable Time Allowed.—Where no time is specified in a contract for the sale of land within which the vendee must make payment of the purchase price, he has the right, in the absence of any tender of a deed by the vendor and demand of payment, to defer such payment for a reasonable time.
    Id.—Contract not Signed by Vendee—Part Payment op Price—Contract Binds Vendor.—A written contract for the sale of land which is signed by the vendor but not by the vendee, and which is based upon the consideration of a part payment of the purchase price by the vendee, is binding upon the vendor and those acquiring title from him with notice of the vendee’s rights, so long as it remains unrevoked, and there is no failure on the vendee to comply with its terms.
    Id.—Acceptance op Contract by Vendee—Relation op Right to Purchase—Purchaser With Notice.—Under such contract, the vendor cannot withdraw the vendee’s right to purchase the land during the time agreed upon for its duration; and where the vendee accepts the contract according to its terms, it vests in him the right of acquiring the land, which right when exercised relates back to the time of the execution of the contract so as to cut off intervening rights acquired with knowledge of its existence.
    Id.—Vendee may Specifically Enforce Contract — Mutuality op Remedy—Commencement op Action.—Such an agreement of sale may be specifically enforced by the vendee against the vendor, although the former has not signed the same, and although it could not originally have been specifically enforced against him by reason of the fact that he had not signed. In the absence of written acceptance by the vendee of the proposition of the vendor prior to suit, in equitable theory the requirement of mutuality of remedy is satisfied when the nonsigning vendee enters suit, since by the very bringing of Ms action he binds himself to abide by the decree, and so empowers the court to decree specific performance against him.
    Id.—Subsequent Purchaser With Notice Takes Subject to Contract. A subsequent purchaser from the vendor, with notice of the rights of the vendee under such contract, took subject to the right of the vendee to complete his purchase.
    APPEAL from an order of the Superior Court of Mendocino County vacating a prior judgment and directing a new judgment in plaintiff’s favor. J. Q. White, Judge.
    The facts are stated in the opinion of the court.
    Preston & Preston, for Appellants Beasley.
    Robert Duncan, for Plaintiff and Respondent.
    Thomas & Thomas, for Defendant Aigeltinger.
   ANGELLOTTI, J.

This is an action for the specific performance of an agreement for the sale of real estate. The lower court first made its findings and entered its judgment in favor of defendants. Later, upon motion of plaintiff for amendments to the conclusions of law and for a judgment based thereon in his favor, the court made an order granting such motion, vacating the prior judgment, and directing a new judgment in plaintiff’s favor, which was accordingly entered. From this order the defendants appeal.

The statute expressly provides for an appeal from such an order. (Code Civ. Proc., sec. 663a.)

The facts of the case are presented in the findings of the court, and are in substance as follows: On the seventeenth day of September, 1910, the defendant E. H. Aigeltinger was the owner of an undivided one-half interest in a tract of land near Hopland, and on that day made, executed, and delivered to one A. H. Pape, acting as agent for the plaintiff, an instrument in writing relative to the purchase of said real estate by plaintiff in the following words:

“San Francisco, September 17, 1910.
“Rec’d. from A. H. Pape as deposit of $10 for William Copple on sale of y2 piece of land known as Lowe place at Hopland. Balance of Five hundred and ninety ($590) dollars to be paid on delivery of deed.
“(signed) E. H. Aigeltinger.”

The purchase price of the land named in this instrument was reasonable, and the sum of ten dollars was actually received by said Aigeltinger upon the date thereof. On September 23, 1910, said Aigeltinger requested William Copple, the principal of said Pape and plaintiff herein, to return said writing, and offered to repay to him the ten dollars which he had received thereunder. The instrument was not returned nor the offer of repayment accepted; but on the twenty-eighth day of September, 1910, Aigeltinger, for a valuable and sufficient consideration, conveyed the property to his co-defendants Spencer Beasley and Isaphene Beasley, his wife, who took such conveyance with full knowledge of the execution and terms of said instrument. . On October 25, 1910, the plaintiff notified the defendant Aigeltinger that he was ready, able, and willing to take said property under the terms of said instrument and offered to pay the balance of the purchase price, which offer Aigeltinger refused, but on his part offered to return the ten dollars which he had theretofore received. The plaintiff then brought this action for specific performance.

By the instrument above set forth, Mr. Aigeltinger, in consideration of the payment to him of a part of the purchase price, bound himself in writing to convey the land involved to plaintiff, upon payment of the further sum of five hundred and ninety dollars, the same being the balance of the purchase price agreed on. No time being specified therein within which plaintiff must make such payment, he certainly had the right, in the absence of any tender of a deed by Aigeltinger and demand for payment, to defer such payment for a reasonable time. In view of the language used it may well be held that his right to take the land upon payment of five hundred and ninety dollars would continue until a demand by Aigeltinger of payment and a tender of deed, but as there never was any such demand or tender of deed, it is unnecessary to determine this question, for it would hardly be contended upon the facts found that plaintiff did not make his tender within a reasonable time. Clearly there was no default on his part. While, owing to the fact that plaintiff had not signed this writing, the agreement could not originally have been specifically enforced against him (Harper v. Goldschmidt, 156 Cal. 245, 251, [134 Am. St. Rep. 124, 28 L. R. A. (N. S.) 689, 104 Pac. 451]), it was nevertheless binding upon Aigeltinger and those acquiring from him with notice of plaintiff’s right, so long as it remained unrevoked, and there was no failure on the part of plaintiff to comply with its terms, for the simple reason that it was based upon a valuable consideration moving from plaintiff to him, the payment of a portion of the purchase price, and thus constituted a contract binding on him. So far as Aigeltinger was concerned, in the absence of default by plaintiff, it was a binding, irrevocable contract for the sale of the property, something which was, of course, entirely different from a mere offer, unsupported by any consideration, which might be revoked at any time before acceptance.

It is settled in this state, as to a mere option for the purchase of real estate, that where there is a consideration therefor, the option cannot be withdrawn during the time agreed upon for its duration, and that when accepted according to its terms it vests in the vendee the right of acquiring the land, which right when exercised relates hack to the time of giving the option so as to cut off intervening rights acquired with knowledge of the existence of the option. (See Smith v. Bangham, 156 Cal. 359, 364, [28 L. R. A. (N. S.) 522, 104 Pac. 689]; Reese Co. v. House, 162 Cal. 740, 745, [124 Pac. 442].) This rule is necessarily equally applicable in favor of the vendee under such a contract of sale as we have here, notwithstanding he has not signed the contract.

It is settled that such an agreement of sale as the one here involved may be specifically enforced by the vendee against the vendor although the former has not signed the same, and although it could not originally have been specifically enforced against him by reason of the fact that he had not signed. (Civ. Code, sec. 3388; Harper v. Goldschmidt, 156 Cal. 251, [134 Am. St. Rep. 124, 28 L. R. A. (N. S.) 689, 104 Pac. 451]; Bird v. Potter, 146 Cal. 286, [79 Pac. 970].) Where there is no written acceptance by the vendee of the proposition of the vendor prior to suit, as said in Harper v. Goldschmidt, 156 Cal. 251, [134 Am. St. Rep. 124, 28 L. R. A. (N. S.) 689, 104 Pac. 451], “in equitable theory the requirement of mutuality of remedy is satisfied when the nonsigning plaintiff enters suit, since by the very bringing of his action he binds himself to abide by the decree of the court in chancery, and so empowers that court to decree specific performance against him.” Not being in default, plaintiff was therefore entitled to specific performance of the contract. The conveyance by the vendor to the Beasleys, who took with full notice of his rights, could not operate to preclude him from this relief. As said in Smith v. Bangham, 156 Cal. 359, [28 L. R. A. (N. S.) 522, 104 Pac. 689], as to an option, “a subsequent purchaser with notice of a valid and irrevocable option would certainly take subject to the right of the option holder to complete his purchase.” (See, also, Reese Co. v. House, 162 Cal. 740, [124 Pac. 442].) This is necessarily true as to such a contract as we have here.

In so far as Leuschner v. Duff, 7 Cal. App. 721, [95 Pac. 914], may be held to express views contrary to what we have said, we cannot follow it, in view of our decisions. The case of Nason v. Lingle, 143 Cal. 363, [77 Pac. 71], is clearly not in point. There was in that case no consideration for Lingle’s proposition, and he effectually revoked such proposition prior to the action on the part of the plaintiffs which, in the absence of such revocation, would have created a binding contract.

It is the absence of any consideration that distinguishes that case from this.

The order appealed from is affirmed.

Shaw, J., Sloss, J., Lorigan, J., and Henshaw, J., concurred.

MELVIN, J., concurring.

I concur, but in approving the quotation from Smith v. Bangham I am not indorsing all of the doctrines of that case. The rule with reference to “subsequent purchasers with notice” was correctly expressed in the opinion but I do not think Mrs. Bangham was properly classified as such a subsequent purchaser or as a person subject to the same rule. I adhere to the convictions expressed in the dissenting opinion in that case of which Mr. Chief Justice Beatty was the author and in the one written by me in which Mr. Justice Lorigan concurred.  