78 Cal. 202 | Cal. | 1889
Action by the vendee for damages for the breach of a contract to convey real estate.
The memorandum of agreement to convey was as follows:—
“ This agreement made this day between G. L. Dennison, of Los Angeles, and J. U. Marriner, of Vineland, California, is as follows:—■
“ Said Dennison agrees to convey to said Marriner*205 lots one, two, thirty-three, thirty-four, sixty, and fifty-nine in his subdivision of the Magee tract, and for same six lots said Marriner agrees to convey to said Dennison the ten acres with new house and improvements on same built by him, and lot number fifty-two, building lots in Malden, Massachusetts, bought of E. S. Converse, size of lot 6,440 square feet, viz., 57£ feet by 115 deep.”
It is alleged in the complaint' that by this agreement it was intended by the parties thereto that the defendant was to convey to plaintiff within a reasonable time certain real estate in Los Angeles County, of which he then owned the equitable title, and which is specifically described; that plaintiff was ready, willing, and able to comply with the agreement on his part, and tendered a deed of conveyance to defendant as provided therein, and demanded a deed for the property. The complaint further alleges, in substance, that defendant represented that he could not comply with the contract, for the reason that prior to the execution of said agreement he had contracted to sell the land to another party; that he supposed the party had abandoned his purchase, but now he was insisting upon holding him to the contract, and that he, defendant, further represented to plaintiff that “he was in danger of indictment and criminal prosecution for selling the said lots to him after he had sold them to said other person, and that he was so fearful of being sent to the state prison for said offense that he could not sleep at night,” and then proposed to plaintiff to deed him other lots if plaintiff would release him from said contract; that plaintiff was unwilling to release him, but defendant then, and at divers subsequent interviews, made and repeated said representations with so much earnestness and apparent sincerity, and manifested such real fear of said criminal prosecution, that plaintiff, then believing defendant’s said statement and representations to be true, consented to take said other lots in lieu of those contracted for; that the representa
It is alleged that the Dennison subdivision lots were, at the date of the contract, of the value of three thousand five hundred dollars, and had at the date of the release become, and continued to be, of the value of ten thousand dollars.
There is no allegation as to the value of the lots agreed to be taken in lieu of those originally contracted for. The amount of damages is alleged to be seven thousand dollars, and the prayer is for judgment for that sum.
There was a demurrer to the complaint, on the ground that it did not state facts sufficient, which was overruled.
The answer expressly admits the execution of the original contract, and does not deny the making of the second agreement, whereby defendant agreed to convey other lots, but denies all of the other material allegations of the complaint.
In a separate count of the answer, it is alleged that by a contract made and entered into on or about the twenty-
There was a trial by jury, and verdict for plaintiff for $3,188.55. The defendant moved for a new trial, which was denied, and he appeals from the judgment and order denying him a new trial.
Three objections are made to the complaint: (a) That the contract for the conveyance of the property contains no sufficient description of the real estate; (6) that the allegations of fraud are insufficient; (c) that there is no allegation that any damage resulted from the fraudulent representations made, or facts set out from which damages can be inferred.
(ct.) The real estate is described in the agreement as lots 1, 2,33,34, 60, and 59 in his (defendant’s) subdivision of the Magee tract. In what city, county, state, or country the land is situated does not appear. If the instrument were one attempting to convey title to property, its insufficiency would be apparent. But the rule as to the particularity of description required in executory contracts to convey is extremely liberal in favor of their sufficiency. The rule is, that where the description, so far as it goes, is consistent but does not appear to be complete, it may be completed by extrinsic parol evidence, provided a new description is not introduced into the body of the contract, and the complaint must contain the averments of such extrinsic matter as may be necessary to render the description complete. (Stanley v. Green, 12 Cal. 162; Lick v. O’Donnell, 3 Cal. 63; 58 Am. Dec. 383; Fry on Specific Performance, 159 et seq.; Torr v. Torr, 20 Ind. 118; Colerick v. Hooper, 3 Ind. 316; Baldwin v. Kerlin, 46 Ind. 426; Brown on Statute of Frauds, sec. 385; McConnell v. Brillhart, 17 Ill. 360; 65
It is not sufficient to allege that, by the imperfect description given in the contract, the parties intended to convey certain property. (Brown on Statute of Frauds; Baldwin v. Kerlin, 46 Ind. 426; Ryan v. Davis, 5 Mont. 505; Eggleston v. Wagner, 46 Mich. 610; Bowers v. Andrews, 52 Miss. 596.)
Thus it is said in Brown on the Statute of Frauds, section 371: “The contract must contain the essential terms of the contract, expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the intention of the parties.”
Again in section 385: "It must of course appear from the memorandum what is the subject-matter of the defendant’s engagement. Land, for instance, which is purported to be bargained for, must be so described that it may be identified.” (See, to the same effect, King v. Wood, 7 Mo. 389; Hudson v. King, 2 Heisk. 560, 572; Clark v. Chamberlin, 112 Mass. 19; Gigos v. Cochran, 54 Ind. 593; Newman v. Perrill, 73 Ind. 152; Ferris v. Irving, 28 Cal. 645; Richard v. Snider, 11 Or. 197; Ryan v. Davis, 5 Mont. 505.)
It is not enough, as we have said, to allege that by such incomplete description the parties intended to convey a certain tract of land. Such extrinsic facts must be alleged as will, in connection with such description,
In Ryan v. Davis, 5 Mont. 505, it is said: “Gan we say, by an examination of the description in this instrument, that it fits and comprehends the property? Or that without being added to, it can be connected with and applied to the very property intended, by the aid of extrinsic evidence, and to the exclusion of all other property? Or, when submitted to virtually the same test as laid down by Simrall, C. J., supra, ‘is the description so complete that it points directly to the subject-matter, or does it refer to something aliunde the instrument, which, when consulted, indicates the property?' The description in this case does not itself identify the property, rior state directly where it is; neither does it indicate any extrinsic fact which will serve to fix its identity or locality. The more particular description contained in the complaint, after the description stated as contained in the memorandum, is not the description of property directly pointed out by the description contained in the memorandum, nor made by reference to any extrinsic fact stated in the memorandum, which, when connected, indicates the property described in such more particular description. This more particular description itself indicates that parol evidence must be wholly resorted to in order to designate the premises. When the agreement itself fails to identify the property, or to furnish the means by which it may be done, by pointing to some extrinsic fact by whose aid the ambiguity may be removed, to allow parol evidence to explain what was intended would be to allow the entire consideration of a-contract in relation to lands, on the part of the person conveying the property, to be proved by parol, and render useless and nugatory the above provision of the statute of frauds.”
As the description, standing alone, is admittedly insufficient, and no facts in aid of it are alleged, the complaint must be held to be bad for that reason.
(6.) It is further claimed that the complaint does not
We think counsel are right as to the rule of law contended for (see Lawrence v. Gayetty, ante, p. 126), and that most of the allegations are within the rule, but there is one allegation showing a representation as to a material and existing fact, viz., that the defendant had, prior to the contract with plaintiff, contracted with another to convey him the same property, and that he was insisting upon a compliance with the contract. The plaintiff, believing this statement to be true, might reasonably have supposed that it would be better to accept other property than to take a deed for this, which was contracted to another, and might become the subject of litigation because of such prior contract. This representation was sufficient to authorize a rescission of the second contract, if the complaint were sufficient in other respects. The other representations, to the effect that the defendant was afraid of being prosecuted and sent to state prison, and the like, were not such representations as the plaintiff had a right to act upon, and were no cause for such rescission. Treating these as surplus-age, the complaint is sufficient as against this objection, there being one material false representation alleged.
(c.) The further objection to the complaint is, that no damages are shown. The action is peculiar. The fraud alleged is not in procuring the plaintiff to enter into the original contract as is usually the case, hut in procuring the release of the defendant from the first contract, and inducing him to enter into a second contract, in lieu of
The respondent attempts to meet this by saying that the action was not for the fraud, but for damages for the breach of the original contract. Then why plead the second contract or the fraud? The making of the second contract would have come properly from the defendant as a defense. If it was obtained by fraud, this could have been shown by the plaintiff without any pleading,under the loose rule obtaining in this state that a plaintiff may prove everything necessary to meet the answer without giving any notice thereof in any way. We think the complaint should be treated as one based upon the alleged fraud. If not, the complaint was greatly weakened by an unnecessary attempt to anticipate an expected defense.
Treating it as an action for the fraud, the demurrer to it should have been sustained on the ground that no damages were shown. As the plaintiff has taken upon
If the facts alleged were not sufficient to authorize a rescission of the second contract, damages could not be recovered for a breach of the first from the performance of which the defendant was thereby released.
The court permitted the plaintiff to prove by one Stett that he had purchased from the defendant the property in controversy subsequent to the contract with the plaintiff. The evidence was objected to as irrelevant and immaterial, and on the further ground that the written contract was the best evidence. The evidence was not irrelevant or immaterial. The complaint alleges that the contract to a third party, which the defendant represented he had made before the contract with plaintiff was executed, was, in fact, made afterward. The evidence was material as tending to prove this allegation. It was unnecessary that the written contract should have been introduced. We understand the rule to be that where the question is not as to the contents of a writing, but as to whether one has been made or not, and the question comes collaterally in issue, it may be proved by parol. (Stanley v. Sutherland, 54 Ind. 339, 353.)
The objection to the evidence was properly overruled.
3. The memorandum of agreement first entered into by the parties was offered in evidence, objected to by defendant on the ground that it contained no description
4. The plaintiff was permitted, over defendant’s objection, to introduce in evidence certified copies of a certain deed and contract without in any way accounting for the absence of the originals. This was error. (Brown v. Griffith, 70 Cal. 14.)
5. The defendant offered to prove the value of the property described in the second contract, and agreed to be conveyed in lieu of that mentioned in the first contract, with a view, we suppose, of showing that the former was of equal or greater value than the latter. The court excluded the evidence, and of this the appellant complains.
As we have said, it was necessary for the plaintiff to allege and prove that the last property contracted for was of less value than the first, or other facts sufficient to show that he was damaged by the making of the last contract. The burden of proof being thus cast upon the plaintiff, and no evidence having been offered by him with reference to the matter, the evidence offered by defendant was wholly unnecessary, and was properly excluded as immaterial.
6. The appellant also complains of the refusal of the court to give his instruction number two, by which the court was asked to instruct the jury that if the property described in the second contract was of equal value with that mentioned in the first, at the time the plaintiff agreed to take the former in lieu of the latter, the plaintiff was not damaged, and the jury should find for the defendant. The instruction contained a correct statement of the law, and under proper pleadings should have been given, but as no issue as to the value of the prop
7. The defendant asked the court to instruct the jury that the knowledge of the defendant, if he had any, that a railroad was to be located near the Dennison subdivision lots, was immaterial, and that he was not bound, and it was not his duty to communicate that fact to the plaintiff, and that the fact of such failure to do so should not be considered.
The first clause of this instruction was not good law. The second clause, as to the duty of the defendant to disclose his knowledge of the proposed location of the railroad, was correct. The fact that defendant had come into possession of a fact showing that the property first contracted for was likely to increase largely in value was a circumstance tending to show the fraud as furnishing a motive for the attempt to relieve himself from his contract; therefore it was not immaterial, and should have been considered by the jury. The instruction, being wrong in this particular, was properly refused, although the other proposition laid down may have been correct.
8. The court, over the defendant’s objection, instructed the jury as follows:—
“ The court instructs you, on the part of the plaintiff, that if you find from the evidence that defendant agreed to exchange the six lots described in the complaint to the plaintiff, and before the paper of January 13, 1887, was made the lots were pointed out to plaintiff on the ground, for the property of plaintiff described in the contract of January 13, 1887, and if you further believe from the evidence that defendant, by false statements and representations, deceived and induced the plaintiff to believe, and that the plaintiff did believe, either he had no title or had sold it to another, or that through false representations detailed in the evidence before you and believed by plaintiff, and he was so induced thereby to consent to the abandonment of the terms of the con*216 tract of January 13,1887, and that those representations so made by defendant were knowingly false, or made by him when he did not know them to be true, plaintiff was not bound by the engagement of March 14 or 16, 1887; and if you so find, your verdict should be for the plaintiff for the amount at least of the difference between the value of plaintiff’s property on the 9th of July, 1887, and of the value of the six lots described in the complaint as belonging to defendant, and designated in the alleged contract of January 13, 1887.”
This instruction was erroneous. It informed the jury in effect that the plaintiff might rescind the second contract, and recover for a breach of the first on the sole ground that the former was induced by fraudulent representations. It leaves out the material element of damage or injury which must be shown to authorize the rescission of a contract. For aught that appears by the complaint or the evidence, the plaintiff may have been benefited rather than injured by this second contract. If so, he has no cause of complaint or ground of action. The error in ruling upon the demurrer to the complaint is carried into this instruction.
9. For the reasons above stated, the court erred in denying defendant’s motion for a nonsuit. The plaintiff had no cause of action on paper, and none was shown by the evidence. For these reasons, the nonsuit should have been granted. For the same reasons, the motion for a new trial was improperly overruled.
Judgment and order refusing a new trial reversed, with instructions to. the court below to allow the parties to amend their pleadings.
. McFarland, J., Paterson, J., Thornton, J., Sharp-stein, J., and Beatty, 0. J., concurred.