89 P. 600 | Cal. | 1907
The plaintiff, Annie J. Pierce, brought this action to recover damages for the breach, by the defendant Hannah M. Edwards, of a contract whereby said Hannah M. Edwards agreed to buy of the co-defendant, Hiram C. Pierce, a certain tract of land. The plaintiff sought to establish a cause of action in herself by alleging that Hiram C. Pierce, who was her husband, had taken title to the land under circumstances which, as she claims, made him a constructive trustee for her, and accordingly entitled her to receive the fruits of any contract made by him respecting the land. Hiram C. Pierce answered, denying the facts on which the claim of a trust relation is based, and filed a cross-complaint in which he sought, on his own behalf, to recover damages from Mrs. Edwards for breach of the contract of purchase. In effect, therefore, the Pierces were separately, as plaintiffs, seeking to recover from Mrs. Edwards damages for the alleged breach of the same contract.
Demurrers of Mrs. Edwards to a second amended complaint of plaintiff and to an amended cross-complaint of defendant Hiram C. Pierce were sustained, and further amendment being waived, judgments were entered in favor of Mrs. Edwards against the plaintiff and against the defendant Hiram C. Pierce. From these judgments, respectively, the plaintiff and the defendant Pierce appeal.
The only question that need be considered here is whether either the complaint or the cross-complaint demurred to, states a cause of action against Mrs. Edwards. Omitting the allegations which are inserted in the said complaint for the purpose of showing the plaintiff's right to enforce the contract, the two pleadings in question contain a number of allegations in common. Thus each sets out in full the contract relied on, which was in writing, and reads as follows: — *652
"HIRAM C. PIERCE.
"ANNIE J. PIERCE.
"HANNAH M. EDWARDS."
(The "Mrs. Samuel Edwards" named in this writing is the defendant Hannah M. Edwards.)
It is alleged in both the second amended complaint and in the amended cross-complaint "That said memorandum of contract was not intended to and did not embrace all the details of the contract." It is also alleged that at the time the contract was made the property was subject to a trust-deed to secure indebtedness and to two mortgages. Both the second amended complaint and the amended cross-complaint contain an allegation that on the first day of May, 1902, the plaintiff (cross-complainant) tendered to the defendant Hannah M. Edwards a good and sufficient deed of the premises, a duly executed reconveyance releasing the trust-deed, and good and sufficient releases of the mortgages, and that said defendant refused to accept said tenders or to pay the said sum of thirty-five thousand dollars. There is no allegation in either pleading under consideration that delivery or possession of the property was tendered to Mrs. Edwards.
We are of opinion that under the contract above quoted the purchaser was entitled to be put in the actual possession of the ranch, and that until such possession was tendered her she was not in default.
That the contract provides for a delivery of possession as well as a transfer of title is, we think, obvious from a mere reading of its terms. The vendor agrees to sell the ranch *653
for the sum of thirty-five thousand dollars and agrees "to deliver said rancho to Mrs. Samuel Edwards by the first of May." The purchaser agrees to take the rancho and pay the above sum. If the agreement had contemplated merely a transfer of the title in consideration of the payment of a certain sum, it would not have been necessary to say anything more than that the vendor agreed to sell the ranch and the purchaser agreed to pay the specified sum. The parties, however, inserted the additional clause binding the vendor "to deliver" the property at a certain time, and binding the vendee "to take" said property. The obligation assumed by the vendor to deliver the property as used in this connection cannot be taken to mean anything else than an obligation to turn over the actual physical possession. The case is very similar to Benson v. Shotwell,
Both the plaintiff and the cross-complainant in framing their pleadings saw the force of this point and sought to evade it by further allegations.
The plaintiff alleges in her second amended complaint, as has been stated, that the written instrument was not intended to and did not embrace all the details of the contract, and avers that "It was also stipulated and agreed between the parties and as a part of said contract that the tenants on said land should remain and become the tenants of the purchaser, Hannah M. Edwards." Under the well-established rule requiring pleadings to be construed most strongly against the pleader, it must be inferred from this allegation that the land was in the possession of tenants, and that an actual delivery thereof was not tendered to the purchaser. Did this *654
clause obviate the necessity of such actual delivery? We think not. "The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument." (Civ. Code, sec.
For these reasons we think that the second amended complaint failed to state a cause of action against the defendant Edwards, and it is therefore unnecessary to consider the further point made by the respondent, that the facts averred were insufficient to show a constructive or resulting trust in the contract in favor of the plaintiff.
The allegations of the amended cross-complaint are somewhat different. There is no averment of an agreement by the vendee to accept any of the tenants as her tenants. In this behalf the cross-complainant alleges merely "that said premises were leased at the time to one Newel Kane, who consented and agreed to and with said Hannah M. Edwards to become and be her tenant on said premises." If the construction heretofore given to the writing be correct, this cross-complaint comes even more clearly than the complaint within the reasoning of Benson v. Shotwell,
It is suggested that the fact that the purchaser knew at the time she made her contract that the property was in the possession of tenants should be considered in construing the contract so as to make the obligation to deliver merely an obligation to deliver the land in the condition in which it was, — i.e. as subject to lease and in the possession of tenants. But we see no force in this. The same argument would lead to the result that an agreement to sell land which is known by the purchaser to be subject to certain encumbrances requires the purchaser to take and pay for the land, notwithstanding such encumbrances. The purchaser, knowing that the land was in the possession of third parties, stipulated for its delivery to her. She is entitled to stand upon this stipulation, which may have been insisted upon for the very reason that she knew of the tenancies. The contract bound the seller to terminate the tenancies, or in some other way place himself in position to comply with his undertaking to deliver the rancho by the 1st of May.
Each of the demurrers was properly sustained. The judgment is affirmed.
*657Shaw, J., and Angellotti, J., concurred.