Minturn v. Baylis

33 Cal. 129 | Cal. | 1867

By the Court, Sawyer, J.:

The plaintiff and defendant Hugh S. May executed an instrument in writing in the following terms :

“ This agreement made and entered into this 23d day of July, 1866, between Hugh S. May of the County of Sonoma, State of California, party of the first part, and Charles Min-turn, of the City of San Francisco and State of California, party of the second part, witnesseth : That for and in consideration of the sum of $750, gold coin of the United States of America, payable in notes of $375 each, said notes to be drawn payable in three or four months after date, said notes all to be executed and delivered on Hugh S. May making, executing and delivering a good and sufficient deed of conveyance for all the water front property on what is known as the old Italian Garden property, including all the land lying between the present traveled country road and Petaluma Creek, including the present wharf and wharf franchise, together with all improvements thereon situated. Said land hereby intended to be conveyed is all of the frontage lying on Petaluma Creek and in front of the property now being occupied by said May. Said above mentioned notes are to commence running from the date on which they are given, and not from that of this agreement.

“ It is hereby understood and agreed that all the old rubbish and lumber not wanted and used by the party of the second part in removing said wharf and lumber, the party of the first part is to have to his own use and benefit. And it is hereby further understood and agreed that the written consent of James Jacques, or, in other words, that a certain mortgage which he now holds on said property is fully satisfied and discharged before said notes are given.

“ In witness whereof we have hereunto set our hands and affixed our seals the day and year first above written.

“ Hugh S. May. [l. s.]

“ Charles Minturil [l. s.]

“ Witness—A. P. Overtoil”

The plaintiff in his complaint sets out the contract, avers that it is an agreement on the part of May to convey the real estate therein described, that the other defendants are subsequent purchasers with notice, and that the plaintiff has offered to perform his part and demanded a conveyance, which defendants refuse to make. He prays a judgment that defendant be required to specifically perform by making a conveyance, and judgment for specific performance was entered by the District Court, from which defendants appeal.

It is objected that the instrument set out contains no such agreement as is averred, and as the judgment requires defendants to perform. This objection appears to us to be absolutely insurmountable. It is quite probable that the parties intended to make such an agreement, but it is very clear that they have not expressed it in this instrument. They start out with a proper introductory clause stating the consideration and describing it at great length, but neglect to state any promise or covenant to do anything for the consideration stated, or who is to do it, or who is to execute the notes. There is certainly no agreement expressed on the part of defendant to convey the property to plaintiff, or, on the part of the plaintiff, to execute the notes mentioned to defendant, nor is any agreement of the kind necessarily implied from the language used. We can only conjecture that such might have been intended. The contract in fact fails to state the agreement between the parties, and is too vague and indefinite to justify a Court in attempting to make an agreement out of it, and specifically enforce it. (Morrison v. Rossignol, 5 Cal. 65; Parrish v. Koons, 1 Parson's Select Eq. Cases, 79; 2 Sto. Eq. Jur. 767; Kendall v. Almy, 2 Sum. 295; Lindsay v. Lynch, 2 Scho. & Lef. 7; Harnett v. Yielding, Ib. 557-8; Colson v. Thompson, 2 Wheat. 341.) In all the cases cited by respondent’s counsel there was something expressly agreed to be done by one side or the other. The substance of an agreement was expressed in the instrument. There was no case in which the instrument was so utterly devoid of an express obligation on either side as this.

The plaintiff’s right to the relief demanded rests on this written instrument. As that fails to disclose a contract which entitles him to the relief, the judgment must be reversed and the action dismissed. And it is so ordered.

By the Court, Sawyer, J., on petition for a modification of the judgment:

In rendering judgment on this appeal we overlooked the fact that defendants, Baylis, Cutter and Sullivan, only appeal, and from the judgment against themselves. That portion of the judgment affecting appellants may be reversed as to them without affecting the judgment as to defendant May, who is not a party to this appeal. The judgment of reversal is therefore too broad in its terms, and respondent, Minturn, asks that it may be so modified as' to affect the appellants only, and allow the judgment to stand as to the defendant, May. "We think he is entitled to the modification. Ordered that the judgment heretofore entered iu this case be, and the same is, hereby vacated, and that judgment he entered reversing the judgment of the District Court as to the appellants, Baylis, Cutter and Sullivan, and that said judgment, as to defendant May, stand as the judgment of the Court, and that appellants recover their costs.

Petition for rehearing as to the other point denied.