82 P. 425 | Cal. | 1905
Plaintiff sued for a cancellation of a deed to real property which he had made to defendants, and for the recovery of the value of certain personal property, farming utensils, and the like, which were upon the land at the time of the conveyance. His complaint alleged that he was an old man seventy-four years of age, and that, induced by the promises of the defendants that they would provide support and maintenance for him during every alternate two months of his natural life, and would pay all his existing debts and obligations, he executed to them a deed of all his realty. He alleged that the promises and representations were made in bad faith with intent to deceive and defraud him of his property; that the promises were made without any intent on the part of defendants to perform them, and that in fact they had wholly failed and neglected to provide him with support and maintenance, nor had they paid any of his debts. The answer denied the bad faith and fraud. It agreed with the complaint upon the question of the moving consideration for the deed, and averred complete performance upon the part of defendants, — the payment of his debts and his maintenance and support, — until plaintiff refused further to accept such support and maintenance. The performance of defendants' contract is alleged to have continued from the winter of 1896 until October, 1902. They specifically aver a payment of doctor's bills, funeral expenses, etc., on behalf of the plaintiff in excess of the sum of one hundred and thirty-five dollars, and, finally, they allege that they never have refused to comply *756 with any of the terms of the contract, and stand ready and willing to perform them all.
Such, in brief, are the pleadings in the case, and upon them the court rendered its judgment that the deed of plaintiff to defendants be canceled, that the defendants execute a deed of conveyance of the property to plaintiff, and that plaintiff have his costs of suit. From the judgment so rendered on the pleadings the defendants appeal.
From the argument of the respondent upon this appeal it appears that the trial court based its decision and judgment upon the case of Grimmer v. Carleton,
Grimmer v. Carleton, as we have said, seems to have entertained the mistaken notion that a contract such as this was void because not specifically enforceable, whereas, in truth, such a contract, in the absence of fraud, is absolutely valid and is no more voidable because not capable of specific performance than would be any other of the myriad forms of like contracts which are daily entered into and daily performed, and for the breach of which upon the part of the promisor the promisee has his action for rescission or for damages, as the circumstances may justify and warrant. It is only necessary upon this proposition to cite the footnote to the case of Grimmer v. Carleton, as reported in 27 Am. St. Rep., at page 171, and also the footnote in Devlin on Deeds, paragraph 807, where the same case comes under review.
That case having been decided upon the mistaken proposition of law that the contract was void, it is perhaps superfluous to point out that issues in this action are joined upon all the vital matters, and that where issue is joined upon any single material proposition a judgment on the pleadings is *758
improper. (Widmer v. Martin,
For the foregoing reasons the judgment is reversed and the cause remanded.
McFarland, J., and Lorigan, J., concurred.