Rep. 80. That was a case where it was sought, by the equitable remedy of injunction, to restrain the commission of acts similar to those complained of in the case at bar, and the appellant sought to invoke, as against the injunction, the principle above stated as applicable to actions at law for damages. This court held, however, that the rule did not apply to the equitable remedy; but it expressly stated that it would apply to an action for damages. Counsel for appellant, in support of their position, had cited a number of cases; and in alluding to them, this court said as follows: "Each of those cases was decided upon the principle that where several persons acting independently of each other engage in the commission of wrongful acts, the torts are distinct, and not joint, and each is only severally liable for the injury caused by his own acts, and not for the torts of others with whom he was not acting in concert. There can be no doubt of the correctness of that principle, and of its applicability to an action at law for the recovery of damages for the violation of a private right." It may be contended that the earlier case of Hillman v. Newington, 57 Cal. 56, established a different doctrine; but it must be remembered that the main purpose of that action was to procure and maintain an injunction. The judgment awarded only nominal damages, one dollar. Before that time there had been some doubt whether several wrong-doers acting independently could be joined in an equitable proceeding to procure an injunction against all; and indeed it had been once held in this state (Keyes v. Little York etc. Co., 53'Cal. 724) that it could not be done. The language of the court in Hillman v. Newington, 57 Cal. 56, must therefore be considered as referring especially to the right of equitable remedy. There was practically no question of damages before the court, and no question was raised as to the distinction between the equitable and the legal remedy. The case is referred to in the opinion of the court in the later case of People v. Gold Run D. & M. Co., 66 Cal. 138, 56 Am. Rep. 80, above mentioned, where Hillman v. Newington, 57 Cal. 56, is evidently considered as settling only the equitable remedy. (And of course the distinction is very plain between holding one defendant liable for the past wrongs of all the others, and simply enjoining all from committing wrong in the future.) We think, therefore, that, under the law as clearly settled, the joint judg ment against the defendants for damages is erroneous.

We have considered this case somewhat at length, because

it is contended that the rule as above stated will, in some instances, work a hardship to owners of property injured by the joint consequences of acts of several persons not acting in concert. No doubt there may be cases where it would be difficult to make sufficient proof against one of such persons if sued separately. But it cannot be made clear that the opposite rule would work less wrong. At all events, we must declare the law as we find it. If the law were changed so that in a case like the one at bar a several judgment could be given against each defendant for the proportionate part of the joint damage which his individual acts had caused, it may be that such change would be in furtherance of justice. But the suggestion of such change could be properly made only to the law-making power.

The judgment appealed from, so far as it awards damages against defendants, is reversed, and in all other respects the judgment is affirmed. Let appellants recover the costs of this appeal.

Order overruling motion for new trial affirmed.

JOINT LIABILITY OF TORT-FEASORS. -In Simmons v. Everson, 124 N. Y. 319, 21 Am. St. Rep. 676, where three several owners of adjoining lots on a certain street permitted a brick wall extending along the front of their lots to remain in a dangerous condition, and a person was killed by the falling down of the wall while lawfully standing in the street, the court decided that the several owners were jointly and severally liable for the death, notwithstanding the fact that no part of the wall of one of them touched the deceased.

The general rule is, that joint tort-feasors are both jointly and severally liable for their torts: State v. Boyce, 72 Md. 149; 20 Am. St. Rep. 458. But where several distinct acts of several persons have contributed to a tortious result, and there was no concert of action, no common intent, there can be no joint liability: Klauder v. McGrath, 35 Pa. St. 128; 78 Am. Dec.. 329.

DREW V. PEDLAR.

[87 CALIFORNIA, 443.]

OF THE RESCISSION OF A CONTRACT OF SALE for the failure of the purchaser to pay the balance of the purchase price, he is entitled to recover of the vendor all the moneys paid by him on account of the purchase, less such actual damages as may have been sustained by the vendor from the vendee's breach of contract, but such damages cannot be recouped in an action in which they are not pleaded.

LIQUIDATED DAMAGES ON FAILURE TO COMPLETE PURCHASE. - A contract for a sale, stipulating that in the event of the vendee's failure to pay the balance of the purchase price, the amount paid by him shall be reAM. ST. REP., VOL. XXII. — 17

garded as liquidated damages for his breach of the contract, and retained by the vendor, is void in so far as it undertakes to fix such damages, and the vendee may therefore recover the amount paid by him, less the actual damages resulting from his non-compliance with his contract. DAMAGES CAUSED BY A BREACH OF AN AGREEMENT TO PURCHASE REAL PROPERTY are, by the Code of California, deemed to be the excess, if any, of the amount which would have become due to the seller under the contract over the value of the property to him; and an agreement stipulating that a different sum shall be considered as liquidated damages for such breach is void.

DEMAND, WHEN UNNECESSARY. IF A VENDOR ELECTS to treat a contract to purchase property of him as rescinded for the failure of the vendee to pay the balance of the purchase price, it becomes his duty to refund all money received under the contract in excess of the damages arising from its breach, and no demand need precede a suit by the vendee to recover such money.

R. B. Terry and C. W. Thomas, for the appellants.

J. R. Webb and F. H. Short, for the respondent.

VANCLIEF, C. On the twentieth day of April, 1888, the parties to this action entered into a written agreement whereby the defendants agreed to sell and the plaintiff to purchase. three lots of land in the town of Fresno at the price of twelve thousand five hundred dollars, to be paid as follows: One thousand dollars upon the execution of the agreement, seven thousand five hundred dollars within sixty days from the date of the agreement, and to assume and pay a mortgage of four thousand dollars to Robert B. Thompson, and also to pay the interest on the mortgage and all taxes thereafter to become due on the land. The agreement also contains the following provision:

"In the event of the failure to comply with the terms. hereof by the said party of the second part, the parties of the first part shall be released from all obligation in law or equity. to convey said property, and said party of the second part shall forfeit all right thereto, and all money paid thereon shall be as liquidated damages for the non-fulfillment hereof by the party of the second part. And the said parties of the first part, on receiving such payments at the time and in the manner above mentioned, agree to execute and deliver to the said party of the second part, or to his assigns, a good and suffi cient deed conveying the said land free and clear of all encumbrances made, done, or suffered by the said parties of the first part, except as above specified.

"And it is understood that the stipulations aforesaid are to

apply to and to bind the heirs, executors, and administrators and assigns of the respective parties, and that time is of the essence of this contract."

The plaintiff paid one thousand dollars upon the execution of the agreement, but failed to pay the seven thousand five hundred dollars when the same became due, and never offered to pay the same or any part thereof until the twenty-fourth day of April, 1889 (about ten months after maturity), when he tendered full payment, and demanded a deed for the land. The defendants then refused to accept payment or to execute a deed, and also refused to refund to plaintiff the one thousand dollars paid by him upon the execution of the agreement, and elected to rescind the agreement. Thereupon the plaintiff commenced this action to recover the one thousand dollars paid by him upon the execution of the agreement, formally alleging in his complaint the facts above stated.

The defendants filed an amended answer, in which they expressly admit the execution of the contract and the payment of one thousand dollars as alleged in the complaint, but allege that they have performed their part of the contract, and that plaintiff failed and refused to pay the seven thousand five hundred dollars, or any part thereof, when the same became due, and that he abandoned the contract. They admit, however, that plaintiff made the tender of payment and demand for a deed on April 24, 1889, as alleged in the complaint. They further "allege that on the failure of plaintiff to perform his said covenants, they treated the one thousand dollars heretofore paid as forfeited, and said contract as abandoned. by the plaintiff, and annulled, and that they converted the said one thousand dollars to their own use."

They further allege that "the said property had greatly increased in value between June 20, 1888, and April 24, 1889; that said increase was of the value of two thousand dollars."

They "deny that they are indebted to plaintiff in any sum, or that plaintiff has sustained any damage by reason of any act of defendants, or either of them."

To this answer the defendants added a cross-complaint, in which they set out the agreement; allege the payment of the one thousand dollars, the performance thereof on their part, the failure and refusal of the plaintiff to perform on his part, except as to the payment of the one thousand dollars; "that defendants are the owners and in possession of the land

described in said contract; that said contract is a cloud upon defendants' title to said land"; and praying that the contract be declared void and of no effect, and that it be canceled, and for such further relief as they may be entitled to.

Upon due notice, plaintiff's counsel moved for judgment on the pleadings. At the time appointed, counsel for the respective parties appeared, and plaintiff's counsel argued the motion, and it was submitted on briefs to be thereafter filed, but defendants' counsel failed to file any brief.

Some time after the expiration of the time agreed upon and allowed for filing briefs, to wit, on October 12, 1889, the court rendered judgment for the plaintiff for one thousand dollars, and interest thereon from April 24, 1889, and costs.

Thereafter, upon due notice, defendants' counsel moved the court to set aside the judgment, on the grounds, -1. That the complaint does not state facts, sufficient to constitute a cause of action; 2. That no written findings of facts were filed or made; 3. That material allegations of the complaint were denied; 4. That no answer was made to the cross-complaint; 5. That the answer stated new matter constituting a defense to the action.

At the same time, defendants' counsel made another motion to vacate the judgment, on the ground "that said judgment was made and entered against defendants through their mistake, inadvertence, and excusable neglect."

This motion was made on affidavits, in connection with which they proffered a draught of a second amended answer which they proposed to file in case the judgment should be set aside.

The following are the affidavits upon which the motion was made:

"R. B. Terry, being first duly sworn, deposes and says that he is now, and at all times since the defendants have appeared in this action, their attorney in said matter; that when the motion heretofore made by plaintiff for judgment upon the pleadings herein was ordered submitted by the court upon briefs thereafter to be filed by counsel for plaintiff, and briefs. of defendants in reply thereto, affiant, upon receiving the briefs of counsel for plaintiff, was unable to find in the city of Fresno the authorities upon which his answer to said brief would be made, and that upon an examination of said authorities at hand, affiant determined that in order that the case should be fully determined upon its merits, that he