I dissent from the order refusing a rehearing. It is provided by section 3307 of the Civil Code that, "The detriment caused by the breach of an agreement to purchase an estate in real property is deemed to be the excess, if any, of the amount which would have been due to the seller, under the contract, over the value of the property to him." If this had been an action for damages for a breach of the contract pleaded, the amount recoverable would have been the difference between the contract price and the present value of the land; but the judgment is for the whole contract price, undiminished. The judgment, therefore, cannot be sustained as a judgment for damages for the breach of the contract. If it is not a judgment for damages for the breach of the contract, it must be a decree of specific performance, and that, in effect, is what it is. It compels the defendant to fulfill the promise which he made. The action is on the contract to enforce its provisions, and is not an action for a breach of contract. It seeks the only decree of specific performance which the vendor could ever have in a case of this kind. Regarded as a decree for specific performance, the judgment is erroneous, because it is not alleged in the complaint that the plaintiff is ready or willing or able to make a conveyance of the land. All that is alleged is, that plaintiff once tendered a deed. It does not offer now to perform its part of the contract, and the decree does not require it to perform its part of the contract. It requires the defendant to do all that he promised to do, — that is, to pay the entire contract price of the land, — and leaves him without any title or right to it. The plaintiff gets the whole contract price and keeps the land, under this decree. The pleadings do not sustain the decree, and the decree does not sustain itself as a decree for specific performance. The opinion says: "No *Page 105 doubt but that, upon payment of the judgment, the defendant will be entitled to a deed." Very true; but this decree does not secure him that right, as it ought to do. He would be entitled to the deed, but it would depend entirely upon the pure volition of the plaintiff whether he got a deed or not, and if the plaintiff should refuse, it would be necessary to bring another action to compel the execution of the deed. Equity does not do justice by piecemeal.
There are additional reasons why the plaintiff is not entitled to a decree of specific performance in this case. The contract is not equitable; it is one-sided and oppressive, and the plaintiff has been guilty of laches in seeking to enforce it. It ought to be left to its action at law, which would give it all that it is entitled to; but if it is to have relief in equity by specific performance, it ought to be compelled to do equity at the same time.
Lorigan, J., concurred in the dissenting opinion.