166 P. 808 | Cal. | 1917
The essentials of this controversy may be thus stated: Plaintiff Lombard desired to purchase a tract of land owned by defendant Robinson. They entered into a written agreement providing for the placing in the hands of the defendant, Title Guarantee and Trust Company, certain papers accompanied by instructions governing the conduct of the escrowee in regard thereto. In brief, this agreement was as follows: Lombard was to pay a certain amount in cash and execute a series of promissory notes each for one thousand dollars falling due a month apart. A deed to the property was to be executed by Robinson to Lombard and a trust deed from Lombard to the Title Guarantee and Trust Company of the same property securing the payments of these promissory notes as they fell due. The property was described by metes and bounds with no reference to acreage. The total purchase price was fifteen thousand dollars. The contract was executed to the extent of making the first payments, followed by the delivery of the trust deed and the promissory notes until there fell due the two last notes payable on August 12 and September 12, 1912. These Lombard refused to pay, basing his refusal upon the ground that he had purchased the land on Robinson's representation that it contained fifteen acres and that he was buying the land upon this representation, agreeing to pay therefor one thousand dollars an acre; that a survey made subsequent to his purchase disclosed that the land contained but thirteen and a fraction acres. Upon Robinson's refusal to acquiesce in this Lombard brought this action.
In his complaint Lombard averred, and these are all the averments material to this consideration, that "he agreed *536 to pay for said real property the sum of one thousand dollars per acre"; that after he had obtained title to the property and had given the trust deed to secure the payment of the unpaid portion of the purchase price he caused a survey of the property to be made which disclosed that the total acreage was 13.5 acres; that immediately he so notified Robinson and made demand upon him for a cancellation or a credit upon the unpaid promissory notes to the amount of one thousand five hundred dollars; "that at the time of and before the purchase of said property said defendant, H.W. Robinson, represented to said plaintiffs that said property contained fifteen acres. That said plaintiffs relied upon said representations as to the quantity of land contained in said property, and said. H.D. Lombard was, by said representations, induced to purchase the same and to pay to said H.W. Robinson said sum of fifteen thousand dollars as hereinbefore alleged. That as hereinbefore particularly set out and alleged said sale by said H.W. Robinson and said purchase by said H.D. Lombard was made upon the basis of one thousand dollars per acre, and the quantity of said land was one of the principal conditions of said contract of purchase and sale." Lombard asked that Robinson and the Title Guarantee and Trust Company be restrained from selling the real property to enforce the payment of the promissory notes and that the notes to the extent of one thousand five hundred dollars, with interest, upon that sum, be canceled, and that the trustee be compelled to convey the real property to Lombard upon the payment, which he tendered, of five hundred dollars with interest.
Defendants answered by denial. The court's findings were in the precise words of the complaint, no more, no less. Its judgment in exactly the same manner followed the prayer of the complaint. From that judgment and from the order denying his motion for a new trial the defendants have appealed. Upon the appeal they take the broad ground that the complaint states no cause of action justifying the court in receiving the parol evidence which it did receive to vary the terms of a written contract; that, notwithstanding the admission of this evidence, it should have been judicially disregarded by the trial court and should be so eliminated from consideration by the appellate court; that the findings following the precise language of the complaint cannot justify *537 the judgment given for the reasons above stated, and also for the reason that the findings in and of themselves are not sufficient to establish any right in plaintiff to the relief which he sought and obtained. Respondent Lombard makes answer that because his complaint was not demurred to and because much of the evidence was received without objection, and because the findings follow the complaint and are supported by the evidence, the complaint and the findings are sufficient to support the judgment, first, on the ground of fraud, and if this be not tenable, then, second, upon the ground of mistake; and if this be not tenable, then, third, upon the ground that it was open to the plaintiffs to show that the true consideration was something other than that expressed in the contract. These, then, are the propositions here calling for determination.
1. Fraud. It may be of profit at the outset of this discussion to call to mind briefly some of the fundamental principles governing the interpretation and finality of written contracts. Such a written contract "supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument." (Civ. Code, sec.
"1. Where a mistake or imperfection of the writing is put in issue by the pleadings;
"2. Where the validity of the agreement is the fact in dispute." (Code Civ. Proc., sec.
"The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity." (Civ. Code, sec.
The truth of the facts recited in a written instrument is conclusively presumed between the parties thereto, or their successors in interest by a subsequent title, but this rule does not apply to the recital of a consideration. (Code Civ. Proc., sec. 1962, subd. 2.) A promissory note is presumed to have been given for a consideration, but the presumption is controvertible. (Code Civ. Proc., sec. 1963, subd. 21.) There is no extrinsic ambiguity in this contract. *538
Indeed, there is no ambiguity at all in the writings involved on this appeal. Hence, parol evidence was not admissible to explain away an ambiguity. Therefore, section
What, then, the court did and what respondents contend it was justified in doing was, in essentials, to reform this contract for fraud. Yet, no fraud whatsoever is charged in the complaint. Indeed, so inefficient is the pleading to state such a cause of action that the appellants would have been well justified in believing that designedly it did not intend to charge fraud. Fraud, actual, is defined in section
"1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; *539
" 2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though be believes it to be true;
"3. The suppression of that which is true, by one having knowledge or belief of the fact;
"4. A promise made without any intention of performing it; or,
5. Any other act fitted to deceive."
This complaint simply states that the grantor "represented to said plaintiffs that said property contained fifteen acres." It is not charged that this assertion was made in a manner not warranted by the information of the grantor at the time of making it. It is not alleged that the circumstances were such that Lombard was entitled to rely upon the representation, and above all, there is the vital omission to charge that Robinson made this representation either with intent to deceive Lombard or with the intent to induce him to enter into the contract. Such an allegation is essential to a charge of fraud. Without it, as fraud is never presumed but must be both pleaded and proved, no charge whatsoever of fraud is preferred. "The material ingredient of actual fraud is the fraudulent intent and this must be charged as one of the facts constituting the fraud." (Feeney v. Howard,
As the complaint is totally insufficient to raise an issue of fraud, so, also, are the findings totally insufficient to establish fraud, for as said in Hoffman v. Kirby,
And to the final contention of the respondents on this point that it will be conclusively taken against these appellants that issue was joined upon the ground of fraud duly alleged because evidence upon the question was admitted and considered by the court, here, waiving the declaration just announced that even if all this were so, the findings which the court made were wholly inconclusive to establish this asserted fraud, there is this to be said. Section
2. Mistake. Quite as inefficient and inefficacious are the complaint and findings to support this judgment upon the ground of mistake. The mistake of which a party to a written contract may be heard to complain in equity can arise in only one of three ways. First, it may be a mistake of law as declared in section
3. Consideration. No better supported than the foregoing is appellants' last contention that the pleading, proofs, findings, and judgment all may be considered as directed to the matter of the true consideration of the contract, which consideration it was permissible to prove by parol. The well-recognized limitation upon the right of a party to vary by parol evidence the terms of a contract and prove the true consideration is well declared as follows: "Where the statement in a written instrument as to the consideration is more than a mere statement of fact or acknowledgment of payment of a money consideration, and is of a contractual nature, as where the consideration consists of a specific and direct promise by one of the parties to do certain things, this part of the contract can no more be changed or modified by parol or extrinsic evidence than any other part, for the party has the right to make the consideration of his agreement of the essence of the contract, and when this is done the provision as to the consideration for the contract must stand upon the same plane as the other provisions of the contract *543
with reference to conclusiveness and immunity from attack by parol or extrinsic evidence." (17 Cyc. 661.) In full accord with this are all our cases: Bradbury v. Higginson,
The contention of respondents, if sustained, would result in modifying the contract in important particulars. The contract as it reads binds Lombard to pay fifteen thousand dollars for a described tract of land. The contract as he would have it read, and as the court made it read, would bind him to pay one thousand dollars an acre for the land, the acreage to be determined after sale, and payments to be made in accordance with that acreage when so determined. Under these pleadings this cannot be done.
It follows herefrom that the judgment and order appealed from must be reversed, and it is so ordered.
Melvin, J., Shaw, J., Sloss, J., and Angellotti, C. J., concurred.
Rehearing denied.