Wolf v. Marsh

Department No. 2, Sharpstein, J.: This is an action upon an instrument in writing, of which the following is a copy: “ [449.00.] Martinez, November 24th, 1866. “ For value received, I promise to pay to S. Wolf, or order, four hundred and forty-nine dollars with interest at one per cent, per month from date until paid, principal and interest payable in United States gold coin. This note is made with the express understanding that if the coal mines in the Marsh Ranch yield no profits to me, then this note is not to be paid, and the obligation herein expressed shall be null and void. “ (Signed) C. P. Marsh.” It appears by the pleadings, evidence, and findings, that at date of this instrument, and thereafter until the 1st day of November, 1871, the defendant was the owner of the one undivided half of said ranch, and that the coal mines which it [231] contained were under lease to the “Poso Coal Company,” at a rent of thirty-three cents per ton for each ton of coal that might be taken from said mines. That up to said first day of November, 1871, the mines had yielded the defendant no profits, and that on the last-named day the defendant conveyed his entire interest in the ranch, including the mines, to one Williams. This action was commenced within four years after the date of said conveyance. There was a demurrer to the complaint, on the grounds, 1st. That it did not state facts sufficient to constitute a cause of action; and, 2nd. That the cause of action was barred by the provisions of § 337 of the Code of Civil Procedure. The demurrer was overruled, and the defendant answered the complaint. The case was regularly tried by the Court, which rendered its judgment in favor of the plaintiff. The defendant moved, on a bill of exceptions, for a new trial, which was denied; and from that judgment, and the order denying the motion for a new trial, the defendant appealed to this Court. The grounds upon which appellant here seeks to have the judgment and order reversed arc, that the action is barred by the Statute of Limitations, and that it is not proved or found that the coal mines in the Marsh Eanch have ever yielded any profit. Upon the point that the action was barred by the Statute of Limitations, it is sufficient to remark, that we are unable to discover any ground upon which that point can be sustained; and if we arc right in the view which we take of the other point, it must be apparent that the statute did not commence running more than four years before the commencement of this action. The instrument sued upon consists of two parts: a promissory note, and a condition upon which it was not to be paid, but to be null and void. That condition was, that the coal mines in the Marsh Eanch should yield no profits to the defendant. ' If they at any time should yield profits to him, the note would then become due and payable. From that time the Statute of Limitations would commence to run, because at that time a cause of action would accrue upon the note. Prior to the 1st day of November, 1871, the date of defendant’s conveyance to Williams, the mines had yielded no profits to defendant, and if he had re [232] tained his interest in them up to this time, or for any length of time, without their yielding any profits to him, no cause of action would have accrued upon the note. But, as before remarked, upon the mines yielding profits to the defendant, the note became due and payable eo instante. fl/"’ Before the mines had yielded any profits to the defendant, he Isold and conveyed his interest in them to a stranger. By so doing he voluntarily put it out of his power ever to realize any profits from the mines. However great the yield of profits from them might be after that, they could yield none to him. And the ¡principle is elementary, that “ if one voluntarily puts it out of his power to do what he has agreed, he breaks his contract, and Jis immediately liable to be sued therefor, without demand, even though the time specified for performance has not expired.” (Bishop on Cont. § 690.) That this case is within that principle, we do not entertain a doubt. When the note was executed, the defendant was a half J owner of the mines, which were leased on such terms that the ! production of coal from them must have yielded him a profit. | After making the note, he voluntarily committed an act which ¡made it impossible for the contingency upon, which the note ¡would become due and payable ever to ' arise. When he did ¡that, he violated his contract, and the note at once became due and payable; and as this action was commenced within four years after that, it follows that the judgment and order of the Court appealed from must be affirmed. Thornton, P. J., and Myrick, J., concurred.