100 Cal. App. 2d 828 | Cal. Ct. App. | 1950
VAN DYKE, J.
This is an appeal by the plaintiff and cross-defendant, Carmella Baggesi, from that part of a judgment decreeing that the defendant and the cross-complainant, Pete Baggesi, is the owner of an undivided one-half interest in certain real property in San Joaquin County. The action was begun by appellant who filed suit against respondent, her son, to recover what she alleged to be her share of the proceeds of sale of crops grown upon the land involved. Respondent answered, admitting in part and denying in part the alleged debt, and filed, in addition to his answer, a cross-complaint by which he sought the decree of the court declaring that he was the owner of an undivided one-half interest in the land, the legal and record title of which stood in the name of the appellant. The answer to the cross-complaint denied these allegations.
The trial court made findings of fact as follows: That on December .19, 1928, Cologero Baggesi and his wife, appellant here, purchased the land, consisting of 60 acres, taking title in joint tenancy; that the purchase price was approximately $17,000, a cash payment of $3,000 being made at the time of purchase and the balance remaining as a debt secured by a lien upon the land; that at that time the entire 60 acres,
The judgment decreed respondent to be the owner of an undivided one-half interest in the property and ordered that if within 15 days from the time the judgment should become final the parties could agree upon a specific and physical division that they exchange cross deeds in accordance therewith and that upon the failure to arrive at this solution then the clerk of the court should execute and deliver to respondent a deed to an undivided one-half interest. It was further adjudged as a concurrent condition to the delivery of any deed to respondent that he pay the said balance upon the secured debt, and finally that appellant recover the balance of the moneys found due her from respondent in the sum of $2,715.46.
Appellant urges two grounds for reversal, the first contention being that the court erred to her prejudice in taking judicial notice of certain alleged customs of Italian farmers in Stanislaus and San Joaquin counties. It appears that when respondent and his witnesses testified concerning the underlying agreement, which was oral, they expressed it as being an agreement that for the consideration stated respondent would ultimately receive “30 of the 60 acres” or “30 acres in that ranch” and no witness testified in words that he was to receive “an undivided one-half interest.” For example,
The court filed a memorandum opinion upon this point, which apparently had become a center of controversy, the appellant contending that under the evidence the agreement lacked certainty in the matter of description to a point rendering it unenforcible. The court declared it to be a matter of common knowledge that in Stanislaus and San Joaquin Counties “many of the ‘Old Country’ Portuguese and Italian farmers have difficulty in understanding the meaning of the term ‘undivided one-half interest’ and are accustomed to refer to such an interest by acreage, e.g., to refer to an undivided one-half interest in a sixty-acre ranch as ‘thirty acres in that ranch. ’ Of this the court takes judicial notice and so holds that the promise to convey thirty acres is equivalent to a promise to convey an undivided one-half interest
But we think it unnecessary to consider this contention further for the reason that the court found that the agreement was for an undivided one-half interest and if this finding is supported by the evidence, as we think it is, then we could not assume that the court relied upon the matter of judicial knowledge, so that if it was wrong therein the judgment would have to be reversed. On the contrary, there was ample testimony from which the court could conclude, as it did, that the true intent of the parties was exactly that found by the court. There is substantial evidence that from shortly before his majority until well into adult manhood respondent had toiled hard and faithfully to develop the land, place it under intensive cultivation and pay off the secured debt, and that in this he had succeeded in great degree; that he did this in reliance upon the promise of his parents, although other children of theirs had left and gone about their own affairs; that to bring about this result he had not only performed the hard labor involved but in off seasons and over hours had worked endlessly to obtain more money than the ranch itself produced and had devoted the sums so earned to the fulfillment of his agreement. A court justifiably convinced of the truth of these matters will not for light reasons lend its aid to an effort to deprive respondent of the legitimate fruits of faith and industry. Such a result would be in fraud of respondent’s rights. Turning again to the testimony we find that although no witness described the interest respondent was to receive in the exact terminology of the conveyancer, yet the sense of it accords with the trial court’s finding. Thirty of 60 acres is a half of 60 acres and an award of an undivided one-half interest in 60 acres is within the embrace of the terms used by the parties to state their agreement. Also the court was entitled to consider that these people had lived together upon the property through
Appellant further contends the judgment must be reversed for insufficiency of the evidence in matters apart from the claim that judicial notice was unlawfully taken, but we think we have sufficiently answered these contentions generally by what has been said and by what appears in the statement of facts we have made.
Some further contentions will now be discussed. Appellant complains that testimony was admitted over objection of conversations held with, and statements made by, Cologero Baggesi out of the presence of appellant. The objection was that the testimony would be hearsay and not binding upon her. Assuming this to be true, the testimony was admissible in proving the contract as an admission against interest by one of the parties thereto and it is not to be assumed on appeal that the trial court did not take all these matters into consideration when it made its decision. Appellant further contends that without this so-called hearsay testimony, the judgment lacks support, but this is contrary to the record, since the testimony of respondent as to the making of the contract, as to the participation therein in the first instance by appellant and as to her affirmations thereof after the death
Although acknowledging that an oral contract to transfer an interest in real property will be enforced if there has been substantial part performance (Trout v. Ogilvie, 41 Cal.App. 167 [182 P. 333]; Baker v. Bouchard, 122 Cal.App. 708 [10 P.2d 468]; Restatement of Contracts, §197), appellant contends that to come within this exception to the general statute of frauds a party claiming enforcement must show a performance in reliance upon the verbal agreement. But, as we have pointed out, the evidence was full and complete to the effect that for years respondent did perform in reliance upon the agreement and did irrevocably change his position as a consequence of such reliance. It may be stated in addition, in connection with the contention based on the statute of frauds, that the statute was not urged in demurrer, nor pleaded in the answer nor asserted during the course of the trial, and under such circumstances cannot be relied on here. (Aaker v. Smith, 87 Cal.App.2d 36, 43 [196 P.2d 150].) In that case the court said: “But defendants are in no legal position to raise the point. The complaint alleged that the agreement was oral. [The same is true here.] Defendants failed to demur, nor did they plead the statute of frauds in their answer. When the oral testimony was introduced they made no objection. They now seek to raise the defense of the statute of frauds for the first time on appeal. Under such circumstances they must be deemed to have waived the defense.”
No other contentions require specific treatment.
The judgment is affirmed.
Adams, P. J., and Peek, J., concurred.