120 P. 755 | Cal. | 1911
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *661 Defendant appeals from a judgment against him, from the order denying his motion to set aside the verdict before entry of judgment and from an order denying his motion for a new trial.
The action was one for the recovery of ten thousand dollars paid as a deposit on account of a contract of sale of real property situate in the city and County of San Francisco. Plaintiff negotiated with Sage, Dealey Co., a corporation, which was defendant's agent, for the purchase of a piece of land and the improvements thereon located on Hayes Street near Van Ness Avenue. On April 16, 1906, a written contract was signed by the proper officers of the said corporation. This writing acknowledged the receipt from James Conlin of ten thousand dollars to secure the sale to him of the real property and improvements in question for one hundred and ten thousand dollars. The sale was made subject to the owner's approval and the seller was to pay his proportion of the taxes accruing from June 30, 1905, up to the date of the "close of sale." Thirty-five days from the date of acceptance by the seller were allowed for search of title and if title was not found good the vendor was to have ninety days in which to remove any defects, but failing in that was to return the *662 deposit immediately. The writing also provided that if the title was found good and the sale not closed in accordance with the terms of the agreement the deposit was to be forfeited as fixed and settled damages. The contract as set forth in this receipt was accepted on the day of its date by James Conlin who in writing bound himself to buy the property at the price and upon the terms named. It was alleged in the complaint that on April 16, 1906, there stood on the property improvements consisting of several buildings which "were of great value as and constituted a material part of the consideration for defendant's entering into said agreement and a material inducement to him to enter into said agreement to purchase said property." It was also alleged and proved that on April 17, 1906, an abstract of title belonging to defendant was delivered to plaintiff for use by him in having the title searched; that on the same day he delivered it to his attorneys; and that on the following day, without fault on his or their part, it was destroyed in the great conflagration, which also swept out of existence the improvements on the real property, the subject of the contract of sale. There is an allegation in the complaint on information and belief that the lien of a mortgage stood against the property at the time of the contract and that it had not been removed before this suit was commenced. There is a further averment that on May 8, 1906, plaintiff rescinded the contract by notice in writing to the defendant and to Sage, Dealey Co., his agent. These, omitting the purely formal matters, are the essential contents of plaintiff's pleading.
After his demurrer to the complaint had been overruled defendant answered, admitting the existence of a mortgage, but averring an agreement with plaintiff that enough money might be retained by the latter from the purchase price of the property to satisfy said mortgage. There are also allegations that the improvements were of no material value and did not constitute any part of the consideration for the execution of the contract of April 16, 1906; and that the action was brought because the real property had decreased in value after April 18, 1906, plaintiff seeking to be excused from a contract upon which he might lose money.
The verdict on general and special issues was in favor of the plaintiff and the judgment entered was for eight thousand *663 dollars, plaintiff having agreed at the trial to allow two thousand dollars to be applied to the recoupment of defendant for that amount paid by the latter to his agent, Sage, Dealey Co., for negotiating the sale. The jury found the value of the land alone on the 16th of April, 1906, to have been ninety-seven thousand dollars and that of the improvements thirteen thousand dollars.
Appellant's counsel take the position that his demurrer was good and that his motion to set aside the verdict should have been granted because it is neither averred nor proven that before the attempted rescission plaintiff restored or offered to restore everything received by him under the contract in accordance with subdivision 2 of section
Appellant's counsel in a long and able discussion ask us to *664
hold: 1. That the burning of the improvements was not a failure of consideration in "any material respect"; and, 2. That where without fault on the part of the vendor such improvements are destroyed the loss must fall upon the vendee under the theory that he is the equitable owner of the property because equity will presume that to have been done which should have been done. Subdivision 4 of section
We will not follow counsel in his discussion of the evidence in which he seeks to demonstrate that the buildings were old; that the income derived from them was less than the interest on the purchase price would have been if it had been deposited in a savings bank; that not the income, but the speculative value of the realty induced plaintiff to enter into the transaction for its purchase; and that therefore the improvements *665 formed no material portion of the consideration to be rendered by the defendant. The jury found the value upon conflicting evidence, some of which was sufficient to justify the conclusion reached; and there was also evidence which supported the finding that the improvements constituted a material consideration for the execution by plaintiff of the contract of sale.
Appellant's counsel cites numerous authorities to the proposition that loss due to the destruction of buildings by fire in a case like this falls upon the vendee. Undoubtedly, there is authority in some jurisdictions for such doctrine, most of the cases depending upon Paine v. Meller, 6 Ves. Jr. 349, Typical American cases upon the matter are Brewer v. Herbert,
Mr. Cahn, one of plaintiff's witnesses, was asked with reference to a cottage on the land in question, "How deep was it?" He answered "I think it was about two rooms in depth" and then proceeded to give his opinion that it was of trifling value. The latter part of the answer was properly stricken out as not being responsive to the question and the court correctly struck out an irresponsive answer to a question relating to the plumbing whereby, instead of telling of what said plumbing consisted, witness volunteered the statement that it was of very poor quality. The court permitted evidence regarding the condition of the factory building which formerly stood on the premises. Defendant sought to show that it was of a very flimsy character. Over his objection plaintiff's counsel was permitted to ask a witness "How much power was required to operate the machinery?" The fact that the building (as shown by the answer to this question) could carry machinery requiring fifteen horse power for its operation was relevant as bearing on the condition of the structure. Mr. Cahn testified on direct examination that the building was in good condition. *667
On cross-examination defendant's counsel put this question to him: "None of the improvements on the land were of any material value were they?" Objection that the question called for a conclusion was properly sustained for the reason that Mr. Cahn was not shown to be an expert on values. Whether a building is in good condition or not may properly be a subject of testimony from one who knows nothing of values. There was no error in sustaining objections to the questions propounded to Mr. Cahn on cross-examination by which he was asked to testify whether the cottage was a cheap or an expensive building. He was not an expert on such matters. He was also asked certain questions with reference to the amount of insurance carried in Mr. Osborn's favor by Cahn, Nickelsburg Co., tenants occupying the property. All of these questions were allowed over defendant's objections. Respondent contends that evidence of the amount of insurance which, as the lease provided, should be carried at the expense of the tenants was pertinent as showing Mr. Osborn's opinion touching the value of his own property; and that the fact of the payment by the tenants of the expenses of insurance and the taxes was in point as showing the income produced by the buildings which were destroyed. We hardly think the inquiry about the insurance was proper on the first theory, but under the pleadings and defendant's contention that the buildings were of trifling value, it was proper to show that the rent paid was net. Perhaps the scope of the investigation of this subject was somewhat too extended, but we do not see how defendant could have been injured by proof of the amount of insurance carried and the premium paid for it. Appellant complains because plaintiff was allowed to testify to the value of the buildings. This was perfectly proper, because plaintiff had qualified as an expert. Mr. Conlin, against objection of defendant's counsel, stated, while on the witness stand, that possession of the property had not been given or offered to him by the defendant. Appellant insists that as the time for search and perfecting of title had not passed, this was improper evidence. The questions relating to possession were proper, however, because possession by a vendee is sometimes evidence that the parties consider the contract substantially completed and plaintiff was seeking to show that there was no basis for any such presumption in this case. Mr. Conlin was *668
interrogated with reference to his real motive in wishing to withdraw from the contract. If he had a right to rescission his motive was an immaterial matter. (Crim v. Umbsen,
We will not consider in detail appellant's criticisms of the instructions given and the court's refusal to give certain others. The jury was fully and fairly instructed upon all the matters properly involved in the case and no substantial error appears. Appellant calls our attention particularly to the court's refusal to instruct the jury that they must disregard all evidence concerning the lease of the property by Mr. Osborn to Neustadter Brothers, without Mr. Conlin's knowledge, after the fire. Evidence of the existence of such a lease was introduced by appellant, who cannot with good grace complain of the court's refusal to direct the jury to disregard a part of his own case.
No other alleged errors require discussion.
The judgment and orders are affirmed.
Henshaw, J., and Lorigan, J., concurred.
Hearing in Bank denied.