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The codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 2 Civil Code) online

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C. C. P.); 139 C. 559, 560, 73 P. 433 (construed and applied).

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

§ 3346a. DAMAGES FOR FIRING WOODS. Every person
negligently setting fire to his own woods, or negligently
suffering any fire to extend beyond his own land, is liable in
treble damages to the party injured.

History: Enacted by Code Commission, Act March 16, 1901,
Stats, and Amdts. 1900-1, p. 421, held unconstitutional, see his-
tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts.
1905, p. 621, incorporating into the C. C. the principle declared
in Pol. C. § 3344.

§3347. INJURIES INFLICTED IN A DUEL. If any per-
son slays or permanently disables another person in a duel'
in this state, the slayer must provide for the maintenance of
the widow or wife of the person slain or permanently dis-
abled, and for the minor children, in such manner and at
such cost, either by aggregate compensation in damages to
each, or by a monthly, quarterly, or annual allowance, to be
determined by the court.

History: Enacted March 21, 1872, based on Stats. 1855, p. 152.

As to duels and challenges, see Kerr's Cyc. Pen. C. §§ 225-232
and notes.

1640



^1



II



Tit.II,ch.II,art.IV.] INJURES— VALUE. §§ 3348, 3353

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

§ 3348. SAME. If any person slays or permanently dis-
ables another person in a duel in this state, the slayer is
liable for and must pay all debts of the person slain or per-
manently disabled.

History: Enacted March 21, 1872.



ARTICLE IV.

GENERAL, PROVISIONS.

§ 3353. Value, how estimated in favor of seller.

§ 3354. Value, how estimated in favor of buyer.

§ 3355. Property of peculiar value.

§ 3356. Value of thing in action.

§ 3357. Damages allowed in this chapter, exclusive of others.

§ 3358. Limitation of damages.

§ 3359. Damages to be reasonable.

§ 3360. Nominal damages.

§3353. YALUE, HOW ESTIMATED IN FAVOR OF
SELLER. In estimating damages, the value of the property
to a seller thereof is deemed to be the price which he could
have obtained therefor in the market nearest to the place at
which it should have been accepted by the buyer, and at
such time after the breach of the contract as would have
sufficed, with reasonable diligence, for the seller to effect a
resale.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 7 pars, annotation.

94 C. 5, 18, 29 P. 406, 410 (construed and applied); 106 C. 441,
446, 39 P. 853 (construed and applied with other sections); 53
P. 693, 694 (construed and applied); 140 C. 624, 632, 74 P. 162
(construed and applied); 2 C. A. 312, 314, 84 P. 356 (applied with
subd. 2, § 3311 — breach of contract to purchase orange crop).

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

1641



§§3354-3356 CIVIL CODE. [Div.IV,Pt.I.

§3354. VALUE, HOW ESTIMATED IN FAVOR OF
BUYEE. In estimating damages, except as provided by sec-
tions thirty-three hundred and fifty-five and three hun-
dred and fifty-six, the value of the property, to a buyer
or owner thereof, deprived of its possession, is deemed
to be the price at which he might have bought an equiva-
lent thing in the market nearest to the place where
the property ought to have been put into his possession, and
at such time after the breach of duty upon which his right
to damages is founded as would suffice, with reasonable dili-
gence, for him to make such a purchase.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 9 pars, annotation.

67 C. 477, 479, 8 P. 17 (construed and applied with other sec-
tions); 91 C. 555, 559, 27 P. 927, 928, 1091 (construed and ap-
plied); 144 F. 886, 895 (applied with other sections — contract to
furnish tin cans).

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

As to measure of damages for delay in delivery, see 78 A.
S. 360-366.



§3355. PEOPERTY OF PECULIAE VALUE. Where cer-
tain property has a peculiar value to a person recovering dam-
ages for deprivation thereof, or injury thereto, that may be
deemed to be its value against one who had notice thereof
before incurring a liability to damages in respect thereof, or
against a wilful wrong-doer.

History: Enacted March 21, 1872.

§ 3356. VALUE OF THIKG IN ACTION. For the purpose
of estimating damages, the value of an instrument in writing
is presumed to be equal to that of the property to which it
entitles its owner.

History: Enacted March 21, 1872; amended April 30, 1874,
Code Amdts. 1873-4, p. 266.

1642



Tit.II,ch.II,art.IV.] LIMITATION OF. §§ 3357-3359

See Kerr's Cyc. C. C. for 5 pars, annotation.

As to many miscellaneous matters as to damages generally,
see note § 32S1, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

§3357. DAMAGES ALLOWED O THIS .CHAPTER, EX-
CLUSIVE OF OTHERS. The damages prescribed by this
chapter are exclusive of exemplary damages and interest,
except where those are expressly mentioned.
History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 2 pars, annotation.

106 C. 441, 447, 39 P. 853 (construed and applied with other
sections).

As to many miscellaneovis matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

§ 3358. LIMITATION OF DAMAGES. Notwithstanding the
provisions of this chapter, no person can recover a greater
amount in damages for the breach of an obligation than he
could have gained by the full performance thereof on both
sides, except in the cases specified in the articles on exem-
plary damages and penal damages, and in section thirty-three
hundred and nineteen, thirty-three hundred and thirty-nine,
and thirty-three hundred and forty.

History: Enacted March 21, 1872.

90 C. 515, 520, 27 P. 373, 374 (referred to).

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

§ 3359. DAMAGES TO BE REASONABLE. Damages must,
in all cases, be reasonable, and where an obligation of any
kind appears to create a right to unconscionable and grossly
oppressive damages, contrary to substantial justice, no more
than reasonable damages can be recovered.

History: Enacted March 21, 1872.
1643



§ 3360 CIVIL CODE. [Div.IV,Pt.I.

As to liquidated damages and penalty, and distinction between,
see Kerr's Cyc. C. C. §§ 1670, 1671 and notes.

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

§3360. NOMINAL DAMAGES. When a breach of duty
has caused uo appreciable detriment to the party affected,
he may yet recover nominal damages.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 19 pars, annotation.

123 C. 428, 431, 56 P. 103 (applied) ; 139 C. 514, 520, 73 P. 418 (con-
strvied and applied).

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.



1644



Tit.III,ch.I.] SPECIFIC RELIEF. §3366

TITLE III.

SPECIFIC AND PREVENTIVE RELIEF.

Chapter I. General Principles, §§3366-3369.
II. Specific Relief, §§3375-3415.
III. Preventive Relief, §§ 3420-3423.

CHAPTER I.

GENERAL PRINCIPLES.

§ 3366. Specific relief, etc., when allowed.

§ 3367. Specific relief, how given.

§ 3368. Preventive relief, how given.

§ 3369. Not to enforce penalty, etc.

§3366. SPECIFIC RELIEF, ETC., WHEN ALLOWED.

Specific or preventive relief may be given as provided by the
laws of this state.

History: Enacted March 21, 1872; amended by Code Com-
mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 421.
held unconstitutional, see history, § 4 ante; amendment re-
enacted March 21, 1905, Stats, and Amdts. 1905, p. 622, enlarg-
ing the scope of the section.

See Kerr's Cyc. C. C. for 2 pars, annotation.

71 C. 68, 69, 11 P. 847 (referred to); 110 C. 638, 642, 42 P. 1084
(applied); 117 C. 377, 380 (construed), 381 (construed), 49 P.
353; 139 C. 469, 474, 73 P. 145 (applied).

As to cancellation of instruments, see Kerr's Cyc. C. C. §§ 3412
et seq. and notes.

As to injunctions, see Kerr's Cyc. C. C. §§ 3420 et soq. and
notes.

As to possession of personal property, see Kerr's Cyc. C. C.
§§ 3379, 3380 and notes.

As to possession of real property, see Kerr's Cyc. C. C. § 3375
and note.

As to rescission of contracts, see Kerr's Cyc. C. C. §§ 3406 et
seq. and notes.

As to revision of contracts, see Kerr's Cyc. C. C. §§ 3399 et seq.
and notes.

As to specific performance of obligations, see Kerr's Cyc. C. C.
§§ 3384 et seq. and notes.

1645



§§ 3367-3369 CIVIL CODE. [Div.IV,Pt.I.

§3367. SPECIFIC RELIEF, HOW GIVEJf. Specific relief
is given:

1. By taking possession of a thing, and delivering it to a
claimant;

2. By compelling a party himself to do that which ought
to be done; or,

3. By declaring and determining the rights of parties, oth-
erwise than by an award of damages.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 3 pars, annotation.
142 C. 43, 46, 75 P. 567 (applied).

As to classification of the instances in which specific relief
is given, see Kerr's Cyc. C. C. § 3375 and note.

§ 3368. PREVENTIVE RELIEF, HOW GIVEX. Preventive
relief is given by prohibiting a party from doing that which
ought not to be done.

History: Enacted March 21, 1872.

As to certiorari, see Kerr's Pocket C. C. P. § 1072.

As to contempt, see Kerr's Cyc. C. C. P. §§ 1209-1222 and notes.

As to injunction, see Kerr's Cyc. C. C. P. §§ 525-533 and notes.

As to preventive relief, generally, see Kerr's Cyc. C. C. §§ 3420
et seq. and notes.

As to prohibition, see Kerr's Cyc. C. C. P. §§ 1102-1105 and
notes.

For Commissioners' comment on this section, see Kerr's Cyc.
C. C. § 336, note.

§3369. NOT TO ENFORCE PENALTY, ETC. Neither
specific nor preventive relief can be granted to enforce a
penal law, except in a case of nuisance, nor to enforce a pen-
alty or forfeiture in any case.

History: Enacted March 21, 1872.

138 C. 664, 665, 72 P. 144 (applied — agreement to give certain
piece of property, instead of money, for failure to perform con-
tract).



1646



Tit.III.ch.II.art.L] POSSESSION OR TITLE. § 3375

CHAPTER II.

SPECIFIC RELIEF.

Article I. Possession of Real Property, § 3375.

II. Possession of Personal Property, §§ 3379, 3380.

III. Specific Performance of Obligations, §§ 3384-3395.

IV. Revision of Contracts, §§ 3399-3402.

V. Rescission of Contracts, §§ 3406-3408.

VI. Cancelation of Instruments, §§ 3412-3415.

ARTICLE I.

POSSESSION QF REAL PROPERTY.
§ 3375. Judgment for possession or title.

§ 3375. JUDGMENT FOK POSSESSION OR TITLE. A per-
son entitled to specific real property, by reason either of a
perfected title, or of a claim to title which ought to be per-
fected, may recover the same in the manner prescribed by
the code of civil procedure, either by a judgment for its pos-
session, to be executed by the sheriff, or by a judgment
requiring the other party to perfect the title, and to deliver
possession of the property.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 47 pars, annotation.

As to action concerning real estate, see Kerr's Cyc. C. C. P.
§§ 738 et seq. and notes.

As to specific enforcement of contract to convey realty, see
Kerr's Cyc. C. C. §§ 3384 et seq. and notes.

As to writ of restitution, see Kerr's Cyc. C. C. P. § 957 and
note.



1647



§§ 3379, 3380 CIVIL CODE. [Div.IV.Pt.I.

ARTICLE II.

POSSESSION OF PERSONAL PROPERTY.

§ 3379. Judgment for delivery.

§ 3380. When holder may be compelled to deliver.

§3379. JTDGMEKT FOR DELIVERY. A person entitled
to the immediate possession of specific personal property
may recover the same in the manner provided by the code
of civil procedure.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 16 pars, annotation.

As to breach of agreement to transfer personalty; compensa-
tion in damages, see Kerr's Cyc. C. C. § 3387 and note.

As to claim and delivery, see Kerr's Cyc. C. C. P. §§ 509 et seq.
and notes.

§3380. WHEX HOLDER MAY BE COMPELLED TO DE-
LIVER. Any person having the possession or control of a
particular article of personal property, of which he is not
the owner, may be compelled specifically to deliver it to the
person entitled to its immediate possession.

HLstory: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 266.

As to breach of agreement to transfer personalty, and rem-
edies to enforce performance, see Kerr's Cyc. C. C. § 3387 and
note.

For Commissioners' comment on this section, see Kerr's Cyc.
C. C. § 3380, note.



1648



Tit.III,ch.II,art.III.] PERFORMANCE. § 3384

ARTICLE III.
SPECIFIC PERFORMANCE OF OBLIGATIONS.

§ 3384. In wliat cases compelled.

§ 3385. Remedy mutual [repealed].

§ 3386. No remedy unless mutual.

§ 3387. Distinction between real and personal property.

§ 3388. Contract signed by one party only, may be enforced by
other.

§ 3389. Liquidation of damages not a bar to specific perform-
ance.

§ 3390. What cannot be specifically enforced.

§ 3391. What parties cannot be compelled to perform.

§ 3392. What parties cannot have specific performance in their-
favor.

§ 3393. Specific performance not required when oppressive
[repealed].

§ 3394. Agreement to sell property by one who has no title.

§ 3395. Relief against parties claiming under person bound to
perform.

§ 3384. IN WHAT C.VSES COMPELLED. Except as other-
wise provided in this article, the specific performance of an
obligation may be compelled.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 266.

See Kerr's Cyc. C. C. for 102 pars, annotation.

110 C. 638, 641 (construod), 642 (construed), 42 P. 1084; 123 C. 1,
6, 69 A. S. 17, 55 P. 713, 43 L. 199 (applied with other sections);
135 C. 256, 260, 67 P. 276 (applied).

SPECIFIC l»KRKOUM.\NCK.

As to cancellation nf iii-strumonts, see Kerr's Cyo. C. C. §§ 3412
et seq. and notes.

As to conditions precedent to a necessity of tender, see 1 L.
554; 21 L. 126.

As to contracts in general; nature of; manner of creation;
interpretation; validity, extinction, etc., see Kerr's Cyc. C. C.
§§ 1549-1701 and notes.

As to discretion in granting; remedy at law, see 8 L. 625; 12 L.
239.

As to doubtful title in, of contracts to convey land, effect on,
see 3 L. 739.

1649



§ 3384 CIVIL CODE. [Div.IV.Pt.I.

As to interpretation of contracts, see Kerr's Cyc. C. C. §§ 1635-
1661 and notes.

As to laches as a bar to suits for, see 54 A. D. 130.

As to part performance, what acts amount to and what do
not, see 53 A. D. 539.

As to proceedings to compel, of contract of intestates by their
executors and administrators, see Kerr's Cyc. C. C. P. §§ 1597 et
seq. and notes.

As to refusal of, because of the inability of the court to
enforce its decree, see 68 A. S. 753.

As to rescission of contracts, see Kerr's Cyc. C. C. §§ 3406 et
seq. and notes.

As to revision of contracts, see Kerr's Cyc. C. C. §§ 3399 et
seq. and notes.

As to, of revised contract, see Kerr's Cyc. C. C. § 3402 and
note.

As to, of contract between husband and wife to compromise
pending or contemplated divorce suit, see 60 L. 406, 412.

As to, of contract for corporate stock, see 12 L. 776; 50 L. 501.

As to, of contract in relation to land in another state, see 1
L. 79.

As to, of contract to prevent revocation of license, see 49 L.
497.

As to, of contracts, see 23 A. D. 423.

As to, of covenants restricting the use of land, see 21 A. S.
484.

As to, of gift of or verbal contract for lands; part perform-
ance, see 5 L. 323.

As to, of option contracts, see 21 L. 127.

As to, of oral voluntary agreements, see 11 L. 116.

As to, of parol trust, see 2 L. 662.

As to, where wife refuses to join in conveyance in pursuance
of husband's agreement, see 89 A. D. 576.

As to statute of frauds, what contracts are void thereunder
and what enforceable thereunder, see Kerr's Cyc. C. C. § 1624
and note.

Certainty and definiteness of contract necessary. — See 1 L.
381; 26 A. D. 661.

Conditions precedent to; necessity of tender. — See 1 L. 554.

Consideration, inadequacy of as ground for refusing. — See
15 A. D. 299.

Damages in lieu of. — See 20 L. 752.

Discretion as to granting, remedy at law.- — See 3 A. C. 1032;
9 A. C. 595; 10 A. C. 164; 8 L. 625; 12 L. 239.

Doubtful title, in case of. — See 3 L. 739.

Effect of denial of the contract. — See 4. L. N. S. 410.

Effect of incapacity to perform.^ — See 12 L. 240.

Equitable enforcement for limited time to prevent public

1650



Tit.III,ch.II,art.III.] PERFORMANCE. § 3384

inconvenience, of contract which is against public policy. — See
1 L. N. S. 1032.

For performance of continuous acts. — See 3 L. N. S. 828.

Forfeiture clause in contract; time, when of essence. — See 12
L. 239.

Fraudulent expression of opinion as a defense.- — See 35 L.
433.

Ground of relief — As to, generally, see 10 A. C. 931.

Same — Inadequacj^ of damage recoverable as warrant, of
partly performed oral contract. — See 1 A. C. 999.

Inability of defendant to — Effect of upon chancery jurisdic-
tion. — See 16 L. 614-616.

Same — Where wife refuses to unite in conveyance. — See 24 L.
763-766.

Inadequacy of consideration — As ground for denying. — See
12 A. C. 122.

Same — Effect of on action for. — See 1 4 L. N. S. 317.

Injunction in aid of performance. — See 5 A. C. 265.

Judicial discretion, as to, rule of. — See 3 A. C. 1032; 9 A. C.
595; 10 A. C. 164; 8 L. 625; 12 L. 239.

Jurisdiction of equity to decree, of contract affecting real
estate in another country. — See 69 L. 681.

Laches as a bar to suits for. — See 54 A. D. 132.

I>iquidated damages, effect of provision in contract for sale
of land.— See 2 L. N. S. 210.

Mandatory injunction to compel a contract for services. — See
20 L. 167.

Mistake, effect of on action for.— See 15 L. N. S. 81.

Mutuality of contract or obligation necessary. — See 7 A. C.
492; 6 L. N. S. 391. 397.

Same — Remedy, necessity of, and what is. — Sec 27 A. S. 173;
5 W. & P. 4565.

Same— Right. — See 1 L. 554; 12 L. 244.

Of agreement — To reconvey property fraudulently conveyed. —
See 3 A. C. 942.

Same — To submit to arbitration. — See 15 L. 142.

Of antenuptial contracts — As to, generally, see 9 A. C. 595.

Same — Right of party to marriage, of antenuptial contract by
third person. — See 9 A. C. 603.

Of contract — As to, generally, see 23 A. D. 423.

Same — As to disposition of property at death. — Sec 8 L. X. S.
1130; 9 L. N. S. 157; 12 L. N. S. 218; 15 L. N. S. 466.

Same — Between husband and wife to compromise divorce
suit. — See 60 L. 412.

Same — For municipal water supply. — See 61 L. 91.

Same — For personal services. — See 6 L. 653.

Same — For sale of corporate stock. — See 50 L. 501-512.

Same — In relation to personal property. — See 5 A. C. 265, 269;
10 A. C. 931, 934.

1651



§ 3384 CIVIL CODE. [Div.IV.Pt.I.

Same — In relation to real property, certainty required. — See
2 A. C./286.

Same— Saine — Contract to sale by one having part interest in
premises.^See 10 A. C. 560, 562.

Same — Same — -Decree providing for mortgage to secure de-
ferred payments. — See 9 A. C. 1058.

Same — Same — Evidence on. — See 2 A. C. 286; 9 A. C. 770.

Same — Same — Land sold to third party.- — See 6 A. C. 189.

Sam'e- — Same — Necessity of tender of purchase price. — See 4
A. C. 849, 852.

Same — Same — Provisions in contract for liquidated damages,
effect of. — See 8 A. C. 357.

Same — Same — Title to be conveyed. — See 8 A. C. 357.

Same — Same- — -Where contract price to be affixed by appraisers.
—See 8 A. C. 660, 664.

Same — Of guaranty.- — See 3 A. C. 773.

Same — Of services. — See 6 L. N. S. 1115-1144.

Same — Signed by beneflciarj^ but not by holder of legal title. —
See 2 L. N. S. 884.

Same- — To construct, erect, or repair.— See 9 A. C. 159, 160; 10
A. C. 227, 230.

Same- — To convey homestead. — See 8 A. C. 357.

Same — To establish or maintain railway station. — See 16 L.
N. S. 307.

Same — To give security. — See 5 L. N. S. 585-597.

Same — To provide for party to marriage — As to, generally,
see 12 L. N. S. 232.

Same — Same — Part performance. — See 7 L. N. S. 734.

Of covenants restricting the use of land. — See 21 A. S. 484.

Of gift.— See 5 L. 323.

Of options.— See 1 A. S. 986, 990; 118 A. S. 592; 21 L. 127; 6 L.
N. S. 403.

Of parol trust. — See 2 L. 662.

Of voluntary agreement. — See 11 L. 116.

Part performance — Taking possession as a sufficient.- — See 8
L. N. S. 870.

Same — What acts amount to and what do not. — See 53 A. D.
589; 6 W. & P. 5182.

Penalty will not prevent. — See 1 L. 192.

Refusal of because of the inability of the court to enforce its
decree. — See 68 A. S. 749.

Relief, generally, see 50 L. 512.

To prevent revocation of license.— See 49 L. 507.

Uncertainty as to time as affecting right to. — See 2 L. N. S.
221.

Verbal contract in relation to land — As to validity of, gen-
erally, see 5 L. 323.

Same — For exchange of lands. — See 5 L. 245.

1652



Tit.III,ch.II,art.III.] remedy mutual. §§3385,3386

Same — On part performance. — See 5 L. 325.

Same — Sufficiency of payment alone. — See 5 L. 236.

Same — Taking possession as an act of performance under —
As to, generally, see 5 L. 326.

Same — Same — And making improvements. — See 5 L. 327.

Same — Theory of ground for relief. — See 5 L. 324.

Same — Where fully performed by one party. — See .5 L. 324.

When purchaser at judicial sale compelled to complete pur-
chase. — See 21 L. 45.

Where wife refuses to join in conveyance in pursuit of hus-
band's agreement. — See 89 A. D. 576.

With abatement of price when. — See 10 L. N. S. 117-125.

§3385. REMEDY MITUAL (repealed).

History: Enacted March 21, 1872; repealed March 30, 1874,
Code Amdts. 1873-4, p. 267.

110 C. 638. 642, 42 P. 1084 (referred to).

As to many miscellaneous matters as to specific performance,
see note § 3384, ante.

§ 3386. NO REMEDY UNLESS MUXrAL. Neither party to
an obligation can be compelled specifically to perform it,
unless the other party thereto has performed, or is com-
pellable specifically to perform, everything to which the
former is entitled under the same obligation, either com-
pletely or nearly so, together with full compensation for any
want of entire performance.

Hicttory: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 23 pars, annotation.

91 C. 87, 90, 27 P. 515 (construed); 110 C. 63S. 642, 42 P. 10S4
(construed); 142 C. 342. 346, 75 P. 896 (applied); 144 C. .'.2S. 533.
78 P. 25. 27 (applied): 147 C. 299, 303. 81 P. 958 (construed with
§3306); 153 C. 106, 112, 94 P. 623 (applied — contract to build and
operate railroad — test of mutuality of remedy, how applied); 4
C. A. 361. 368, 88 P. 287 (when failure to perform obligation Is
insufficient, in equity, to constitute defense to action for breach
of contract).

As to many miscellaneous matters as to specific performance,
see note § 3384, ante.

As to mutuality, contract necessary for spociflc pt-rformance,
see 7 A. D. 492.

As to mutuality of right in specific performance, see 1 L. 554;
12 L. 244.

1653



§§ 3387-3389 CIVIL CODE. [Div.IV.Pt.I.

As to necessity of mutuality of remedy, and what is, for
specific performance, see 27 A. S. 173.

As to what parties cannot have specific performance, see
Kerr's Cyc. C. C. § 3392 and note.



§3387. DISTINCTION BETWEEN EEAL AND PERSON-
AL PROPEETY. It is to be presumed that the breach of an
agreement to transfer real property cannot be adequately



Online LibraryCaliforniaThe codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 2 Civil Code) → online text (page 135 of 156)