California.

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

. (page 68 of 156)
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 68 of 156)
Font size
QR-code for this ebook


745-748.

As to what constitutes breach of condition subsequent, see 44
A. D. 749.

As to when entire performance is necesary and where recovery
can be had for past performance, see 72 A. D. 454.

As to when equity will relieve, though time is of essence
of contract, see note 2 Edw. Ch. (N. Y.) 78, 6 L. ed. 315.

Architects' certificates, see Kerr's Cyc. C. C. § 1439, note
pars. 8, 9, 10, 203-209 this note.



§1440. WHEN PERFORMANCE, ETC., EXCUSED. If a

party to an obligation gives notice to another, before the
latter is in default, that he will not perform the same upon
his part, and does not retract such notice before the time
at which performance upon his part is due, sucli other party
is entitled to enforce the obligation without previously per-

800



Tit.II.Ch.III.] CONDITIONS VOID. § 1441

forming or offering to perform any conditions upon his part
in favor of the former party.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 15 pars, annotation.

88 C. 537, 541, 26 P. 355, 356 (applied); 54 C. 587 (applied);
128 C. 250, 253, 60 P. 860 (applied); 144 C. 397, 401, 77 P. 996 (If
party declares himself not bound by contract, he cannot set up
failure in either demand or tender); 148 C. 357, 360, 83 P. 151,
113 A. S. 276, 3 L. N. S. 908, 7 A. C. 541 (section has no applica-
tion to cases where performance is not yet due upon part of
party who has previously given notice that he will not perform
when performance is due); 3 C. A. 190, 192, 85 P. 665 (cause of
action accrues when defendants refuse to perform); 7 C. A. 241,
243, 94 P. 82, 83 (applied).

As to conditions generally, see note § 1435, ante.

As to demand and notice to perform, see Kerr's Cyc. C. C.
§ 1439, note pars. 156 et seq.

As to right of party discharged by refusal to recover, see
Kerr's Cyc. C. C. § 1440, note par. 9.

§ 1441. DIPOSSIBLE OR UJVLAWFUL CONDITIONS VOID.

A condition in a contract, the fulfilment of which is [1] im-
possible or [2] unlawful, within the meaning of the article
on the object of contracts, or [3] which is repugnant to the
nature of the interest created by the contract, is void.

Hiistory: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 69 pars, annotation.

As to act of party himself causing impossibility, sec Kerr's
Cyc. C. C. § 1441, note pars. 24, 25.

As to conditions generally, see note § 1435, ante.

As to constitutionality of statutes limiting the right to con-
tract, see 46 A. S. 334.

As to constitutionality of statutes restricting contract and
business, see 21 L. 789.

As to the effect of a succeeding law or act of God upon a
condition subsequent, as preventing its perform.ance, see 21
L. 58.

As to impossibility of performance of conditions precedent
and subsequent, see 62 A. D. 54, 70 A. S. 829-837.

As to imprisonment causing impossibility, see Kerr's Cvc. C. C.
§ 1441, note par. 28.

As to liability upon breach of condition by reason of its impos-
sibility, see 31 A. R. 100, 70 A. S. 829-837.
Kerr's C. C— 26 801



§ 1442 CIVIL CODE. [Div.III.Pt.I.

As to relief against forfeiture on conditions precedent and
subsequent, see Kerr's Cyc. C. C. § 1439 note pars. 121-137.

As to statutory restriction upon contracts between master and
servant, see 14 L. 325.

Act of God as an impossibility of performance, see Kerr's
Cyc. C. C. § 1441, note par. 26.

§1442. CONDITIONS INVOLVING FORFEITURE, HOW
CONSTRUED. A condition involving a forfeiture must be
strictly interpreted against the party for whose benefit it
is created.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 22 pars, annotation.

78 C. 49, 56, 20 P. 41, 44 (applied); 87 C. 34, 37, 25 P. 153, 154
(construed); 92 C. 514, 522, 27 A. S. 158, 28 P. 593, 595 (applied);
110 C. 590, 595, 42 P. 976 (applied); 128 C. 285, 288, 60 P. 855
(applied); 130 C. 16, 19, 62 P. 295 (applied); 145 C. 181, 184, 78
P. 638 (conditions providing- for forfeiture of estate are to be
construed liberally in favor of holder of estate, and strictly
against enforcement of forfeiture); 148 C. 223, 227, 82 P. 964, 113
A. S. 223, 7 A. C. 396 (applied to insurer who prepared policy of
fire insurance).

As to conditions generally, see note § 1435, ante.

As to relief in case of forfeiture, see Kerr's Cyc. C. C. § 3275.

As to relief against forfeiture in equity, see 68 A. D. 85-88;
also Kerr's Cyc. C. C. § 1439 and note.



802



Tit.II.ch.IV.] OBLIGATIONS. §§ 1448-1450

CHAPTER IV.

ALTERNATIVE OBLIGATIONS.

§ 144S. Who has the right of selection.

§ 1449. Right of selection, how lost.

§ 1450. Alternatives indivisible.

§ 1451. Nullity of one or more of alternative obligations.

§1448. >VHO HAS THE RIGHT OF SELECTION. If an

obligation requires the performance of one of two acts, in
the alternative, the party required to perform has the right
of selection, unless it is otherwise provided by the terms -of
the obligation.

HlHt«i.ry: Enacted March 21, 1872.

See Kerr's Cyc. C. C for 2 pars, annotation.
119 C. 599, 601, 51 P. 962.

§ 1449. RIGHT OF SELECTION, HOW LOST. If the party
having the right of selection between alternative acts does
not give notice of his selection to the other party within
the time, if any, fixed by the obligation for that purpose, or,
if none is so fixed, before the time at which the obligation
ought to be performed, the right of selection passes to the
other party.

History: Enacted March ill, 1872.

Contract in alternative, failure to elect, effect of. — See Kerr's
Cyc. C. C. § 1449 and note.

§14o0. ALTERNATIVES INDIVISIBLE. The party hav-
ing the right of selection between alternative acts must
select one of them in its entirety, and cannot select part
of one and part of another without the consent of the other
party.

History: Enacted March 21, 1872.

See Kerr's Cyc C. C. for 2 pars, annotation.
82 C. 46, 50, 22 P. 1131 (applied).

803



§ 1451 CIVIL CODE. [Div.III,Pt.I.

§ 1451. NULLITY OF ONE OB MORE OF ALTERNATIVE
OBLIGrATlONS. If one of the alternative acts required by
an obligation is such as the law will not enforce, or becomes
unlawful or impossible of performance, the obligation is to
be interpreted as though the other stood alone.
History: Enacted March 21, 1872.

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

55 C. 564, 566 (meaning of "instrument" — It does not embrace
what); 123 C. 240, 243, 55 P. 804.



804



rpij. jjj "I BURDEN— RIGHTS. §§ 1407, 1458



TITLE III.

TRANSFER OF OBLIGATIONS.

§ 1457. Burden of obligation not transferable.

§ 1458. Rights arising out of obligation transferable.

§ 1459. Non-negotiable instruments may be transferred.

§ 1460. Covenants running with land, what.

§ 1461. What covenants run with land.

§ 1462. Same. [Covenant for benefit of property.]

§ 1463. Same. [Covenants to pay rent, etc.]

§ 1464. What covenants run with land when assigns are named.

§ 1465. Who are bound by covenants.

§ 1466. Who are not.

§ 1467. Apportionment of covenants.

§1468. Transfer of obligations; covenants to run with land.

§1457. BUKDEN OF OBLIGATION NOT TRANSFER-
ABLE. The burden of an obligation may be transferred with
the consent of the party entitled to its benefit, but not other-
wise, except as provided by section fourteen hundred and

sixty-six.

History: Enacted Mircli 21, 1872.

See Kerr's Cyc. C. C. for 20 pars, annotation.

84 C 281 ''89 18 A. S. 179, 24 P. 42, 45 (cited and construed):
86 C 574 576, 577, 21 A. S. 63, 25 P. 52, 53 10 L. 369 (applied and
construed); 96 C. 404, 407, 408. 31 P. 266 (construed); (C.^Oct. 3,
1894) 38 P. 39, 40 (applied and construed); 124 C. 255. 257. 56 P.
1109 "(applied and construed); 135 C. 636, 643, 68 P. 92 (applied
and cited); 1 C. A. 587, 591, 82 P. 542 (applied to assignment
of charter party); 1 C. A. 659, 664, 82 P. 1075 (party dead cannot
consent— heir is entitled to benefit of obligations descending to
him).

§ 1458. RIGHT ARISING OUT OF OBLIGATION TRANS-
FERABLE. A right arising out of an obligation is the prop-
erty of the person to whom it is due and may be transferred

as such.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 4 pars, annotation.

84 C 281. 283, 288. 18 A. S. 179. 24 P. 42. 43. 44 (applied and
construed with §§1044 and 1059); (C. Dec. 22. 1900). 63 P. 168.

806



§ 1459 CIVIL CODE. [Div.III.Pt.I.

169, 170 (applied and cited with §954); 144 C. 256, 260, 79 P.
451, 1 A. C. 850 (applied to contract granting exclusive option
to purchase land); 3 C. A. 561, 568, 86 P. 820 (rights and things
arising out of agreement concerning shipment of wheat, includ-
ing profits, are capable of assignment); 54 F. 320, 331 (applied,
with other sections, to cause of action surviving to administra-
tor as assets in his hands).

As to action by assignee, see Kerr's Cyc. C. C. P. § 368 and
note.

As to assignment by heir, see 'Kerr's Cyc. C. C. § 2909.

As to assignment of non-negotiable written contracts for
payment of money or personal property, see Kerr's Cyc. C. C.
§ 1459 and note.

As to assignment of things in action generally, other than
those arising out of breach of written contracts, see Kerr's
Cyc. C. C. § 954 and note.

§1459. NON-NEGOTIABLE INSTRUMENTS MAT BE
TRANSFERRED. A non-negotiable written contract for the
payment of monej^ or personal property may be transferred
by indorsement, in like manner with negotiable instruments.
Such indorsement shall transfer all the rights of the assignor
under the instrument to the assignee, subject to all equities
and defenses existing in favor of the maker at the time of
the indorsement.

Hi.story: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 73 pars, annotation.

55 C. 126, 129 (applied with C. C. P. §368); 55 C. 564,
566 (referred to with other sections); 84 C. 281, 283, 18 A. S.
179, 24 P. 42, 43 (referred to with §§1044, 1458); 86 C. 574, 576,
21 A. S. 63, 25 P. 52, 53, 10 L. 369 (construed); 94 C. 141, 145, 29 P.
866, 867 (construed); 101 C. 286, 288, 35 P. 876 (construed
With C. C. P. §368); 107 C. 55, 62, 40 P. 45 (construed with
C. C. P. §§368, 440); 108 C. 25, 29, 41 P. 24 (applied); 129
C. 409, 412, 62 P. 36 (applied with C. C. P. §1184); 132 C.
582, 584, 64 P. 1097 (applied); 133 C. 681, 685, 65 P. 1110
(applied with C. C. P. §368); 134 C. 408, 410, 66 P. 494
(applied with §324); 69 P. 228, 232 (applied); 144 C. 19, 35, 77
P. 712, 713 (applied — assignment of mortgage); 1 C. A. 587, 591,
592, 82 P. 542 (charter party and contract may be transferred).

As to assignment of judgment at common law, form of trans-
fer, validity and effect, and rights of assignee, see 54 A. D. 366,
369.

As to city, county, and state warrants, see Kerr's Cyc. C. C.
§ 1549, note pars. 45, 49.

806



Tit. III.] COVENANTS. §§1460,1461

As to liability of assignor as indorser, see Kerr's Cyc. C. C.
§ 1549, note par. 25.

As to parties — Assignee is proper party to sue. — See Kerr's
Cyc. C. C. P. § 367 and note.

Counterclaim not barred by assignment, when. — See Kerr's
Cyc. C. C. P. § 440 and note.

Notice to party liable is necessary upon assignment of chose
in action, when. — See Kerr's Cyc. C. C. § 954 and note.



§1460. COTENANTS RUNNING WITH LAND, WHAT.

Certain covenants, contained in grants of estates in real
property, are appurtenant to such estates, and pass with
them, so as to bind the assigns of the covenantor and to
vest in the assigns of the covenantee, in the same manner
as if they had personally entered into them. Such covenants
are said to run with the land.

Hi-story: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 8 pars, annotation.

80 C. 114, 118, 13 A. S. 112, 22 P. 53, 54 (referred to in discus-
sion); 80 C. 530, 534, 538. 22 P. 275, 276, 277, 278 (referred to in
discussion); 119 C. 283, 294, 63 A. S. 108, 51 P. 2, 542 (referred to
with §1113); 1 C. A. 701, 704, 82 P. 1082 (what covenants affect
title to land).

As to liability of heirs and assigns, see Kerr's Cyc. C. C.
§§ 1465, 1466 and notes.

Privity of estate between grantor and grantee's assigns. — See
10 A. S. 557-565.

§ 1461. WHAT COVENANTS RUN WITH LAND. The only
covenants which run with the land are those specified in
this title, and those which are incidental thereto.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 11 pars, annotation.

80 C. 114, 118, 13 A. S. 112, 22 P. 53, 54 (referred to in discus-
sion); 80 C. 530, 534, 22 P. 275 (referred to in discussion with
§§1460 and 1462-1466); 120 C. 571, 573, 65 A. S. 203, 52 P. 813
(referred to with following sections); 136 C. 36, 42, 68 P. 308
(referred to with § 1462); 1 C. A. 701, 704, 82 P. 1082 (what cov-
enants affect title to land).

As to covenants running with land, see Kerr's Cyc. C. C.
P. §§ 1460, 1462-1464 and notes; also 47 A. D. 577.

807



§§ 1462-1464 CIVIL CODE. [Div.III.Pt.I.

§1462. SAME. [COYENANT FOR BENEFIT OF PROP-
ERTY.] Every covenant contained in a grant of an estate
in real property, which is made for the direct benefit of the
property, or some part of it then in existence, runs with
the land.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 12 pars, annotation.

80 C. 114, 118, 13 A. S. 112, 22 P. 53, 54 (construed and applied);
80 C. 530, 534, 22 P. 275 (construed and applied); 92 C. 93, 95, 28
P. 103 (construed); 136 C. 36, 41, 42, 68 P. 308 (construed and
applied); 152 C. 618, 627, 93 P. 881 (what covenants only run
with land); 1 C. A. 701, 704, 82 P. 1082 (what covenants affect
title to land).

§ 1463. SAME. [COYENAJ^TS TO PAY RENT, ETC.] The

last section includes covenants "of warranty," "for quiet en-
joyment," or for further assurance on the part of a grantor,
and covenants for the payment of rent, or of taxes or assess-
ments upon the land, on the part of a grantee.
History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 12 pars, annotation.

152 C. 618, 627, 93 P. 881 (what covenants only run with
land); 5 C. A. 475, 480, 90 P. 962 (covenant to pay rent runs
with land).

§1464. WHAT COYENANTS RUN WITH LAND WHEN
ASSIGNS ARE NAMED. A covenant for the addition of some
new thing to real property, or for the direct benefit of some
part of the property not then in existence or annexed thereto,
when contained in a grant of an estate in such property,
and made by the covenantor expressly for his assigns or to
the assigns of the covenantee, runs with land so far only
as the assigns thus mentioned are concerned.
History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 6 pars, annotation.

66 C. 416, 420, 5 P. 910 (construed and applied); 80 C. 530, 534,
22 P. 275 (referred to with §§60-63, 65, 66); 152 C. 618, 627, 93
P. 881 (what covenants only run with land).

As to covenants for direct benefit of property, see Kerr's Cyc.
C. C. § 1462 and note.



rpj^. jjj -J WHO BOUND BY. §§ 1465-1467

§ 1465. WHO ARE BOUND BY COYEXANTS. A covenant
running with tlie land binds those only who acquire the
whole estate of the covenantor in some part of the property.

History: Enacted March 21, 1872.

80 C. 530, 534, 22 P. 275 (referred to by the court in the dis-
cussion with §§ 1460-1464 and 1466).

See Kerr's Cyc. C. C. § 1461 and note par. 8.

§ U66. WHO ARE NOT. No one, merely by reason of hav-
ing acquired an estate subject to a covenant running with
the land, is liable for a breach of the covenant before he
acquired the estate, or after he has parted with it or ceased
to enjoy its benefits.

Hi.slory: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 3 pars, annotation.

66 C. 416, 421, 5 P. 910 (referred to in discussion); 80 C. 530,
534, 22 P. 275, 276, 277 (referred to with §§1460-1465); 96 C. 404.
407', 31 P. 266 (referred to as part of §1457); 116 C. 84, 88, 58
A. S. 135, 47 P. 935 (construed and applied).

§ 1467. APPORTIONMENT OF COYENANTS. Where sev-
eral persons, holding by several titles, are suljject to the
burden or entitled to the benefit of a covenant running with
the land, it must be apportioned among them according to
the value of the property subject to it held by them respect-
ively, if such value can be ascertained, and if not, then
according to their respective interests in point of quantity.
History: Enacted March 21, 1872.

As to apportionment on partial destruction of leased
premises, see Kerr's Cyc. C. C. §§ 1467, 1514 and notes; also 30
L. 716; 36 L. 424; 61 A. S. 570-573.

As to apportionment of rent notes not duo at life tenant's
death, see 48 L. 735.

Apportionment of loss between tenant and remainderman.—
See 35 L. 790.

For general decision of doctrine of apportionment of rent, see
18 Encyc. L. 289.

809



§ 1468 CIVIL CODE. [Div.III,Pt.I.

§1468. TRANSFER OF OBLIGATIONS; COVENANTS TO
RUN WITH LAND. A covenant made by the owner of land
with the owner of other land to do or refrain from doing
some act on his own land, which doing or refraining is
expressed to be for the benefit of the land of the covenantee,
and which is made by the covenantor expressly for his assigns
or to the assigns of the covenantee, runs with both of such
parcels of land.

History: Enacted March 21, 1905, Stats, and Amdts. 1905, p.
610.



810



Tit IV ch.L] PERFORMANCE. § 1473

TITLE IV.

EXTINCTION OF OBLIGATIONS.

Chapter I. Performance, §§ 1473-1479.

II. Offer of Performance, §§ 1485-1505.

III. Prevention of Performance or Offer. §§ 1511-

1515.

IV. Accord and Satisfaction, §§ 1521-1524.
V. Novation, §§ 1530-1533.

VI. Release, §§ 1541-1543.



CHAPTER I.

PERFORMANCE.

§ 1473. Obligation extinguished by performance.

§ 1474. Performance by one of several joint debtors.

§ 1475. Performance to one of joint creditors.

§ 1476. Effect of directions by creditors.

§ 1477. Partial performance.

§ 1478. Payment, what.

§ 1479. Application of general performance.

§1473. OBLIGATION EXTINGUISHED BY PERFORM-
ANCE. Full performance of an obligation, by the party whose
duty it is to perform it, or by any other person on his behalf,
and with his assent, if accepted by the creditor, extin-
guishes it.

HLstorr: Enacted March 21, 1872; amended by Code Commis-
sion, Act April 16, 1901, Stats, and Amdts. 1900-1, p. 407. held
unconstitutional, see history, § 4 ante.

See Kerr's Cyc. C. C. for 128 pars, annotation. ^. . _ ^

76 C. 465, 468, IS P. 645, 646 (construed and applied), 8b <^.
184 187 (applied but erroneously cited as §1473 C. C. P.)
P 1005 (same error); 62 P. 68, 69 (applied to indorser s pay-
ment of corporation note, and who took an assignment thereof
from payee); 133 C. 574, 577, 579-582, 6^P,-1094 (construed and
applied)- 134 C. 580, 582, 66 P. 785 (applied); 1 C. A. 251, 253, 81
P 1115 (construed with other sections and applied to payment

811



§§1474,1475 CIVIL CODE. [Div.III.Pt.I.

by surety, of note on which he appealed as co-maker; 1 C. A.
&59, 664, 82 P. 1075 (promissory notes — distinction between "suc-
cession" and "transfer of obligation").

As to accord and satisfaction, see post §§ 1521-1524 and notes;
see also note §1521 post; and 20 L. 785-812.

As to burden of proof when note, check, etc., are taken for
debt, see Kerr's Cyc. C. C. § 1478 and note.

As to estoppel by acceptance to object to performance, see
Kerr's Cyc. C. C. § 1477 and note par. 9.

As to extinguishment of negotiable instruments by payment,
see Kerr's Cyc. C. C. P. § 1473, note, par. 2, and § 3164 and note.

As to payment of negotiable instrument to payee after trans-
fer to bona fide holder, see Kerr's Cyc. C. C. § 3164 and note.

As to place where negotiable instrument must be paid, see
Kerr's Cyc. C. C. § 3100 and note.

As to plea of satisfaction, see Kerr's Cyc. C. C. § 1523 and note.

As to question of fact where note, check, or like is taken
for debt, see Kerr's Cyc. C. C. § 1478 note par. 35.

As to railroad fare — Payment and tender of, see Kerr's Cyc.
C. C. §§ 2187-2190 and notes.

As to surrender of negotiable instrument on payment, see
Kerr's Cyc. C. C. § 3137 and note.

As to tender under protest against liability, see Kerr's Cyc.
C. C. § 1494 and note.

Mortgage discharged by payment of debt. — See 76 A. D. 76; 51
A. S. 689; 54 A. S. 300.

Surety discharged by payment by principal. — See Kerr's Cyc.
C. C. § 2839 and note.

§1474. PERFORHTANCE BY O^E OF SEVERAL JOI?fT
DEBTORS. Performance of an obligation, by one of several
persons who are jointly liable under it, extinguishes the lia-
bility of all.

Hi.story: Enacted March 21, 1872.

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

1 C. A. 659, 664, 82 P. 1075 (cited); 2 C. A. 659, 660, 84 P. 466,
468 (extinguishment of judgment).

As to release and discharge, see Kerr's Cyc. C. C. §§ 1541-
1543 and notes.

As to waiver in performance by one, see Kerr's Cyc. C. C.
§ 1474, note par. 7.

§ 1475. PERFORMANCE TO ONE OF JOINT CREDITORS.

An obligation in favor of several persons is extinguished by

812



I



Tit.IV,ch.I.] PARTIAL PERFORMANCE. §| 1476, 1477

performance rendered to any of them, except in the case of
a deposit made by owners in common, or in joint ownership,
wliich is regulated by the title on deposit.

History: Enacted March 21, 1872.

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

96 C. 275, 278, 31 A. S. 201, 31 P. 290 (applied); 131 C. 421, 425,
63 P. 732 (applied).

§ U76. EFFECT OF DI«E('TIO\S BY ( KEDITORS. If a

creditor, or any one of two or more joint creditors, at any
time directs the debtor to perform his obligation in a particu-
lar manner, the obligation is extinguished by performance
in that manner, even though the creditor does not receive
the benefit of such performance.

HLstory: Enacted March 21, 1872.

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

76 C. 639, 644, 18 P. 805, 806, 807 (indefinite citation— it refers
to § 1476 C. C. P.).

§1477. PARTIAL TERFORMA.Nt E. A partial perform-
ance of an indivisible obligation extinguishes a corresponding
proportion thereof, if the benefit of such performance is vol-
untarily retained by the creditor, but not otherwise. If such
partial performance is of such a nature that the creditor
cannot avoid retaining it without injuring his own property,
his retention thereof is not presumed to be voluntary.
History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 25 pars, annotation.

88 C. 543, 552, 26 P. 515, 518 (applied): 4 C. A. 361, 368, 88 P.
287 (partial breach of contract — forfeiture of plaintiff's cor-
responding right — relief in equity); 4 C. A. 527, 532, 88 P. 493
(applied to contract to furnish pumping plant of specified
capacity).

As to entirety of contract — Complete performance, when
essential to cause of action ex contractu. — See 59 A. S. 277-295.

As to impossibility of performance, see Kerr's Cyc. C. C. § 1511
and note.

As to offer of partial performance, see Kerr's Cyc. C. C. § 1486
and note; also 100 A. S. 390 et seq.

813



§§ 1478, 1479 CIVIL CODE. [Div.III,Pt.I.

As to partial payment by one of joint obligors, see Kerr's
Cyc. C. C. § 1474 and note par. 4.

As to prevention of performance, see Kerr's Cyc. C. C. § 1512
and note.

As to prevention of full performance, see Kerr's Cyc. C. C.
§ 1511 and note.

Answer — Admission of partial performance. — See Kerr's Cyc.
C. C. § 1473 and note pars. 39 et seq.

§ 1478. PAYMENT, WHAT. Performance of an obligation
for the delivery of money only, is called payment.

History: Enacted March 21, 1872.

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

99 C. 89, 94, 37 A. S. 32, 33 P. 737, 739 (referred to); 69 P.
481, 482 (cited); 1 C. A. 659, 664, 82 P. 1075 (cited with other
sections).

As to payment by check, see note 7 L. 442, 443.

Partial payment.- — See Kerr's Cyc. C. C. § 1477 and note pars.
16 et seq.

§1479. APPLICATION OF GENERAL PERFORMANCE.

Where a debtor, under several obligations to another, does
an act, by way of performance, in whole or in part, which
is equally applicable to two or more of such obligations, such
performance must be applied as follows:

1. If, at the time of performance, the intention or desire
of the debtor that such performance should be applied to the
extinction of any particular obligation, be manifested to the
creditor, it must be so applied.

2. If no such application be then made, the creditor, within
a reasonable time after such performance, may apply it
toward the extinction of any obligation, performance of which
was due to him from the debtor at the time of such perform-
ance; except that if similar obligations were due to him
both individually and as a trustee, he must, unless other-



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 68 of 156)