25 P.2d 9 | Cal. | 1933
By this action plaintiff seeks to have a written agreement for the exchange of real properties reformed and, as reformed, specifically enforced or, in the event specific performance cannot be had, an award of damages based on defendant's alleged failure to comply with the terms of the agreement. At the inception of the trial the defendant objected to the introduction of any evidence on the ground that the complaint fails to state a cause of action. This objection was sustained and from the judgment on the pleadings the plaintiff prosecutes this appeal.
Appellant does not contend that the agreement as executed is capable of specific performance. The very purpose of this action is to revise the instrument by adding thereto certain terms and conditions the absence of which is concededly fatal to its specific enforcement. We therefore direct our attention to the sufficiency of the complaint to state a cause of action for reformation. Section
[2] The complaint in the present case does not measure up to this requirement. Nowhere is it alleged that any of the terms of the exchange agreement were omitted from the written instrument by or through fraud or mistake of the parties or either of them. When this deficiency in the complaint was urged at the commencement of the trial by an objection to the introduction of any evidence, counsel for the plaintiff (appellant here) frankly admitted that he was unable to allege or prove that fraud or mistake had crept into the execution of the agreement. He conceded that the writing was intentionally executed in its present form and that none of its terms or provisions had been inadvertently or otherwise omitted. This being so, the complaint fails to state a cause of action for reformation under the above-quoted code section. (Carr v. King, supra; Auerbach v.Healy, supra.)
[3] The courts will not resort to extrinsic evidence for the purpose of reading into a writing terms and conditions other than those intended to be included therein by the parties. We have no quarrel with the rule under which parol evidence is admitted to explain ambiguities in a writing. That principle is without application here. There is no ambiguity or uncertainty in the written provisions of the exchange agreement here involved. The writing is merely incomplete and so deficient in its terms as to preclude relief by way of specific performance. This alone does not warrant the introduction of extrinsic evidence to vary or add to an agreement concededly executed exactly as intended by the parties. The complaint therefore fails to allege, and appellant by his admissions indicates his inability to prove, a case for equitable interposition. *57
[4] Respondent asserts that this is fatal to appellant's second cause of action for damages for breach of the agreement. In support thereof we are referred to Morgan v. Dibble,
Though the written agreement here sued on is too indefinite to permit of its specific enforcement, in our opinion it is sufficiently certain and complete in its terms to warrant an action for damages for its breach. It is settled that "`a greater amount or degree of certainty is required in the terms of an agreement which is to be specifically executed in equity than is necessary in a contract which is the basis of an action at law for damages. An action at law is founded upon a mere nonperformance by a defendant, and this negative conclusion can often be established without determining all the terms of the agreement with exactness. The suit in equity is wholly an affirmative proceeding. The mere fact of nonperformance is not enough; its object is to procure a performance by the defendant, and this demands a clear, definite, and precise understanding of all the terms; they must be exactly ascertained before the nonperformance can be enforced.'" (Durst v. Jolly,
The complaint in the present case, without any reference to the question of specific performance, adequately alleges, in a separate count, a cause of action for damages based on the respondent's breach of the agreement. In view of our simplified procedure, which admits of but one form of action and in which legal and equitable relief are administered by the same tribunal, it was incumbent on the court below to receive evidence addressed to the cause of action for damages and to grant such relief as the evidence warranted. (Hansen v. Hevener, supra.) This reasoning would appear to be in accord with the principle which recognizes that a plaintiff who has undertaken to avail himself of a remedy that he is not entitled to, is not thereby prevented from availing himself of a remedy that he is entitled to under the facts of the case. (McGibbon v. Schmidt,
The judgment is reversed in so far as the cause of action for damages is concerned, and the cause is remanded, with directions to the court below to proceed to trial thereon.
Seawell, J., Thompson, J., Shenk, J., Preston, J., Langdon, J., and Curtis, J., concurred.