196 P. 891 | Cal. Ct. App. | 1921
This action was commenced for the purpose of recovering an amount due from defendants for failure to deliver certain peach crops, in accordance with the terms of a written contract entered into by respondent Grove and the assignor of the plaintiff. Respondent Adelsbach was made a party by order of the lower court for the reason that he became the purchaser of the real property upon which was grown the fruit mentioned *255 in the contract. The plaintiff in an amended complaint sets forth the contract in full and also all the facts showing the violation thereof and the amount of damages sustained by him. The respondents demurred to the amended complaint upon the ground that it fails to state facts sufficient to constitute a cause of action.
This demurrer was sustained, without leave to amend, and judgment was entered accordingly, and from this judgment the plaintiff appeals. Two points only are presented for the consideration of the court.
[1] 1. The respondent Grove claims that the contract in question runs with the land and that, upon the conveyance of the premises to his codefendant, the latter was saddled with the burdens of the contract and the former was released therefrom. The contract contains the following provision: "It is mutually agreed between the seller and the buyer that the covenants herein contained shall run with the land herein described, and shall bind both parties hereto, their heirs, executors, administrators and assigns." This provision does not constitute a covenant running with the land. (Secs. 1460-1462, Civ. Code.) Only those covenants that are made for the direct benefit of the property and are contained in a grant of the property run with the land. (Secs. 1460 and 1462, supra; Long
v. Creamer Meat Packing Co.,
[3] 2. The second point relied upon to sustain the judgment is that the description of the real property is so defective that the contract cannot be made the foundation for a personal liability on the part of respondent Grove. It must be conceded that the description is somewhat faulty, but we are satisfied that it is quite sufficient to sustain this contract. The description is in the following words: "The following orchards and lands leased or owned by the seller in the County of __________ State of California, to wit: Located 3/4 miles southeast of Visalia." And further along in the contract occur the following statements, which may be useful in identification of the property: "Acres, 10, Present age, 6, Varieties of fruit, Tuscan peaches. Acres 10, Present age, 6, Varieties of fruit, Phillips peaches." It is fundamental that a contract must be so interpreted as to give effect to the mutual intention of the parties. (Civ. Code, sec.
"The construction as to the boundary given to a doubtful deed by the parties themselves as shown by their acts and admissions, will be accepted as the true one, unless the contrary is shown." (4 Am. Eng. Ency. of Law, 796.) "The construction which the parties have, by their acts, placed upon an ambiguous instrument is entitled to great, if not controlling weight in determining its proper construction." (17 Id. 24, citing a long array of authorities.) Along a like line is the case of Stanley v. Green,
3. Independently of any construction based upon the acts of the parties, the language used in the description is sufficiently definite. In considering this point the court is required to keep in mind two leading principles. [5, 6] First, in a conveyance of real property, the law exacts only such description as, when aided by evidence applying the description to the property, will serve to identify it, and, secondly, it requires no such completeness of description in executory contracts. Upon the second point we cite Marriner v. Dennison,
But in this case now under review, the description of the land and its identity are only incidental to the main purposes of the contract. The contract does not involve the title or right of possession of the land. And it seems that in such a case, even a less stringent rule applies than in the case of executory contracts to convey land. As said by this court, quoting from an earlier case: "Much greater liberality is allowed in construing and curing defective descriptions in broker's contracts than in a deed of grant of land, so far as the statute of frauds is concerned, the terms of the employment are the essential parts, and such contracts will not be declared void merely because of a defect, uncertainty or ambiguity in the description of the property to be sold or exchanged when such defect can be cured by the allegation or proof of extrinsic facts or circumstances." (Goodrich v.Turney,
Carefully analyzing the description in this case, we see that it meets even rather exacting requirements. It is composed of the following elements:
a. — The fruits growing and to be grown during certain years;
b. — Upon the following orchards;
c. — Leased or owned by the seller;
d. — Located three-fourths of a mile southeast of Visalia; *260
e. — Containing ten acres of Tuscan peach trees, six years old;
f. — Containing ten acres of Phillips peach trees, six years old.
It will be noted that each one of these elements helps to identify the premises. It is averred in the complaint that the lands in question are owned by the seller and that he owns no other; that they contain orchards; that these orchards answer in all respects to the calls in the description, and that the premises are three-fourths of a mile southeast from Visalia. It may be that this last call is in fact a little hazy, but in theory it is not.
There is no intrinsic difficulty in locating a point three-fourths of a mile southeast of Visalia. Such a point exists and it is a mathematical point. The complaint informs us that such a point can be and has been found and that thereat is located an orchard of twenty acres, bearing certain fruit trees fulfilling in every particular the calls of the contract. There can be but one orchard at the point in question, but conceding for the moment, that a description calling for a point three-fourths of a mile southeast of Visalia might possess such uncertainty as to be in some degree a floating point, still it is only barely conceivable that another orchard should be found in the immediate locality containing twenty acres and bearing fruit trees of the kind and age described in the contract. Such coincidences happen only in theory and not in practice.
Even in the case of deeds, much indulgence is allowed. "The general rule in regard to the construction of the description of the premises in a deed is one of the utmost liberality. The intent of the parties, if it can by any possibility be gathered from the language employed, will be effectuated." (Aguire v. Alexander,
In Wade v. Deray,
Respondent Adelsbach was improperly made a party, and the judgment as to him is affirmed. The judgment as to respondent Grove is reversed and the trial court is directed to overrule his demurrer.
Burnett, J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 4, 1921.
All the Justices concurred.