This is an action between the same parties as inLemle v. Barry, post, p. 6, [183 P. 148]. By stipulation of the parties both cases were submitted at the same time and upon the same briefs. In a written stipulation filed by the parties it is stated that the questions involved in the two cases "are identical." In the petition for transfer to this court respondents state that this is the same case as Sac. No. 2676. The appellant, however, claims that in Sac. No. 2676 "he was entitled to recover from the respondents the payment made by him upon the execution of the agreement of July 3, 1912, and in his second action (Sac. No. 2751) to recover damages for *Page 2 breach of said contract," basing his contention upon the same principle of law in both instances. In the transcript on appeal in one case the second amended complaint alone is brought to this court, and in the other the amended complaint. The original complaint is not brought up in the record. It appears, however, from the dates in the two cases that while both complaints are based in large part upon the same facts, that the case now under consideration is a separate and distinct suit in which plaintiff seeks to recover fifty thousand dollars damages for the breach of the written contract, more particularly referred to in the opinion in Lemle v. Barry,supra. The facts alleged in the two complaints are substantially identical, and, so far as necessary, are set out in the above-mentioned opinion, save that in this action for damages it is alleged not only that the plaintiff has fully performed each and every covenant contained in his said agreement by him to be performed, but that he has at all times been ready, willing, and able to pay to the vendors the one-half of the full purchase price of said premises, and to deliver the note and mortgage called for by the contract, and that he has been ready to perform each and every covenant and condition of said agreement by him to be performed in the event that the vendors had corrected, removed, or remedied the defects in their title and were able to convey to the plaintiff a fee-simple title. In lieu of the allegations contained in the action to recover the purchase money, to the effect that the plaintiff had demanded a return of the five thousand dollars, it is alleged in this action that the defendants at all times since June 4, 1913, the date of the service of the notice that the contract was terminated, have failed and refused to correct the defect or to convey or to offer to plaintiff a good, sufficient, or merchantable title to said land. As the parties have failed to make any distinction between the two actions or base any claim upon that distinction, it seems unnecessary for us to discuss at any length such differences. It seems to be agreed by the parties that both decisions should be either affirmed or reversed. [1] It should be noted, however, that the remedies in the two cases are quite distinct and wholly inconsistent and that the plaintiff cannot have both remedies. (McGibbon v. Schmidt, 172 Cal. 70, [155 P. 460]; 3 Elliott on Contracts, sec. 2097.) The action to recover the purchase money is based upon the theory that by the conduct of the vendors, acquiesced in by the vendee, the contract had been terminated, and the action is in the nature of *Page 3 one for money had and received, namely, money paid to the vendors for which, in view of the termination of the contract, the vendee has received no consideration. This is clearly pointed out in the case of Thomas v. Pacific Beach Co.,115 Cal. 136, [46 P. 899], which involved the application of the statute of limitations. It was there held that such an action was not an action upon the contract. (See, also, Shively v.Semi-Tropic. Land etc. Co., 99 Cal. 259, [33 P. 848]; Joyce v. Shafer, 97 Cal. 335, [32 P. 320]; Aikman v.Sanborn, 5 Cal. Unrep. 961, [52 P. 729]; Heilig v. Parlin,134 Cal. 99, [66 P. 186].) On the contrary, the action for a breach of contract is one based upon the contract. (Ahlers v.Smiley, 163 Cal. 200, [124 P. 827].)
As we have held in Sacramento No. 2676, when the final payment became due it was essential for the vendors to tender a deed in order to put the vendee in default and to enforce a forfeiture. It is also true that it is necessary for the vendee to tender the purchase money in order to put the vendors in default (Townsend v. Tufts, 95 Cal. 257-261, [29 Am. St. Rep. 107, 30 P. 528], Leach v. Rowley, 138 Cal. 709-716, [72 P. 403], Sausalito etc. Co. v. Sausalito Imp. Co., 166 Cal. 302 -308, [136 P. 57]), unless such tender was excused under all the circumstances. (Merrill v. Merrill, 95 Cal. 334, [30 P. 542]; S.C., 102 Cal. 317, [36 P. 675]; 38 Cyc. 135.)
It is a matter of some doubt, which is not discussed by the parties, whether the general allegations of the complaint sufficiently allege either a tender or a sufficient excuse for a failure to make a tender. (See Lynn v. Knob Hill Imp. Co.,177 Cal. 56, [169 P. 1009].) In view of the fact that the parties concede that both cases should be determined in the same way by reversal or affirmance, and that the plaintiff cannot recover in both cases, and that the recovery in each case would be substantially the same and that the other case must be reversed for the reasons stated in the opinion, it follows that this judgment should also be reversed.
Judgment reversed.
Lennon, J., Angellotti, C. J., Lawlor, J., and Melvin, J., concurred.