I concur in the judgment and in the main proposition upon which it is rested. In decreeing specific performance of a vendor's contract to convey lands with compensation for a partial breach which renders full performance impossible, a court of equity must estimate the compensation for the breach by the same rule that controls a court of law in an action at law, and that is the rule prescribed by section 3306 of the Civil Code.
In accordance with this rule the superior court should have limited the inquiry as to the value of the timber and wood to the date of the breach of the contract, which, in my opinion, was the eleventh day of October, 1900, the date of defendant's notice of his election to purchase. That was the date when a conveyance was due, and when the breach must be considered to have occurred.
Rehearing denied.
The following is the opinion referred to in the dissenting opinion of Mr. Justice Van Dyke, rendered in Department One on the 28th of November, 1904: —