165 P. 3 | Cal. | 1917
Appeal by plaintiff from a judgment and an order denying his motion for a new trial. The action was for specific enforcement of an alleged contract for the conveyance of real estate, or to recover damages for the breach. *39
The essential facts are stated in the court's findings, which may be summarized as follows: On November 16, 1910, Markarian, the defendant, executed a written option, whereby he offered to sell to L. W. Klein and Company a tract of land in Fresno County "for the sum of $45,000, payable at the times and upon the terms and conditions following, to wit: $11,000.00 to be paid within ten days from and after said Company shall have notified me of its acceptance of this offer. The balance to be paid as follows: In quarterly yearly payments with interest at 6% annually. Upon the making of $11,000.00 payment of said purchase price, I will make, execute and deliver to said Company or to any person named or substituted by it, my deed of conveyance of said property, with and containing the usual covenants." By the writing the defendant agreed, upon acceptance of his offer, to furnish an abstract showing good title. The offer or option was to remain in force until the sixteenth day of December, 1910, "and thereafter until the same shall be withdrawn by notice in writing." The option was never withdrawn. On February 17, 1911, said L. W. Klein and Company gave to the defendant written notice that it accepted the offer, and demanded that defendant furnish an abstract and execute a conveyance to the plaintiff (named as substituted for L. W. Klein and Company), offering, at the same time, to pay the defendant the sum of eleven thousand dollars, and to execute and deliver to him plaintiff's four promissory notes for eight thousand five hundred dollars each, payable, respectively, one, two, three, and four years after date, with interest at six per cent per annum, payable annually, together with a mortgage on the said land to secure the payment of such notes. The defendant refused to convey the land or to accept the money or the notes or the mortgage offered, notifying plaintiff at the same time that he would not perform said contract. On the fourth day of May, 1912 — some fourteen months later — the plaintiff made a renewed tender and demand, and the defendant again refused to accept the tender or to make the conveyance. The court finds that the contract was just and equitable, and that the purchase price of forty-five thousand dollars was the reasonable value of the land at the time the option was given, and at the time it was accepted, i. e., on February 17, 1911. Since the last-named date, the land has increased in value, and it was, on the fourth day of May, *40 1912 (the date of the second demand), worth sixty thousand dollars. It is found, contrary to the averment of the complaint, that plaintiff was not damaged in the sum of fifteen thousand dollars. The conclusions of law drawn from these facts were that the contract was and is "incomplete, uncertain, and indefinite; that by reason thereof said contract cannot be specifically enforced"; and that plaintiff had suffered no damage. Accordingly, judgment was entered denying plaintiff either equitable or legal relief.
It is an old and unquestioned rule of equity that, whatever right there may be to maintain an action at law for damages, a contract will not be specifically enforced unless it be complete and certain in its terms. (Pomeroy on Contracts, sec. 159; Agard v. Valencia,
Furthermore, the contract fails to provide how the obligation to make the deferred payments is to be evidenced or *41
secured. The option was signed by the defendant alone. He was to convey his land upon payment of less than one-fourth of the purchase price. Thereupon, he would have no writing signed by anyone evidencing an obligation to pay the balance, nor any security for such balance beyond the inadequate security of a vendor's lien. If this was the intent of the parties, specific performance might have been properly refused upon the ground that the contract was not "just and reasonable" as to the defendant. (Civ. Code, sec.
The appellant concedes, virtually, that the writing is, on its face, so uncertain as to preclude specific enforcement. He claims, however, that all uncertainty was removed by his act of tendering four notes, together with a mortgage to secure them. The defendant having then failed to specify any objections to the terms of the instruments tendered, he was, it is argued, precluded from objecting thereafter. Section
Under the findings, the court properly refused to award damages for the breach of the contract. There was no increase in the value of the land between the signing of the option and the defendant's breach, which occurred when he refused to comply with the first demand, that of February 17, 1911. So that, assuming that the case presents the element of bad faith which, under section
The judgment and the order denying a new trial are affirmed.
Shaw, J., and Lawlor, J., concurred.