200 P. 25 | Cal. Ct. App. | 1921
This action was brought to recover damages alleged to have been sustained by the plaintiff because of breach of contract to convey real property. There was a judgment in plaintiff's favor and defendant has appealed therefrom.
On the fifth day of June, 1919, defendant, then being the owner of two certain lots of land, entered into a written contract with the plaintiff whereby it agreed to sell and plaintiff agreed to buy the property. The purchase price as fixed by the contract was the sum of $1,500 and was made payable $200 upon the execution of the contract, the remainder in sums of $20 (or more) with interest monthly, the installments to be payable on the fifth day of each month after the date of contract. The plaintiff made the initial payment on the fifth day of June in the year mentioned; he made the further payment on July 5th of $20, and on the fifth day of August, 1919, tendered the third payment of $20, which defendant refused to accept. Thereupon, or within a few days, the plaintiff made a tender of the entire remainder of the purchase price agreed upon and demanded a conveyance of the property, which demand was refused. Defendant's refusal to comply with its agreement was based upon the following facts: On May 26, 1919, an employee of the defendant, who was duly empowered to act in that manner, wrote a letter to a firm of real estate agents authorizing them to sell the same property which was later bargained for by the plaintiff. The letter written to the agents authorized them to "sell on or before thirty days from date" the property therein referred to and contained a statement that a commission of five per cent would be paid for their services. It seems that the employee who had the preliminary negotiations with the plaintiff respecting the sale of the same property was not advised of the fact of the sending of this letter. However, the court found that on "about" June 10, 1919, the agents referred to notified defendant that they had sold the lots in conformity with the terms of the letter of authorization. On the 21st of June, 1919, the general officers of the defendant corporation executed the deed to the purchaser produced by the agents. At the time the deed was made the employee of defendant who prepared the deed had no actual knowledge of the existence of the contract made with plaintiff. It was between August 1 and *68
August 14, 1919, that this employee communicated the facts regarding the sale to the employee who had dealt with plaintiff. It appeared in evidence, and the findings express the fact, that the price obtained through the real estate agents was not as much as that agreed to be paid by the plaintiff, the difference being about $300. The defendant offered to pay back to the plaintiff all moneys delivered to it by him before the action was commenced. At the trial the plaintiff produced evidence showing that between the date of his contract and the date of the breach committed by defendant there had been a large increase in the value of the property, and the court found that on the fourteenth day of August, 1919, being the date when the plaintiff was advised that defendant would not fulfill its contract, the property was of the value of $7,000, and there was ample evidence to sustain that finding. The judgment was computed accordingly, by the making of required deductions, leaving the sum of $5,907 which plaintiff was held to be entitled to recover. This recovery was allowed under the finding that defendant had shown bad faith. Section
[2] Appellant makes the further contention that the complaint in the action did not state facts sufficient to present the issue as to the bad faith of defendant. The complaint did allege the making of the contract, the breach thereof, the value of the property at the time of the breach, and that the defendant "without any just cause or just excuse" refused to make conveyance of the property. We think that the complaint was sufficient and that it tendered all of the issues which were passed upon by the court. If *71 it was imperfect in any respect the defect was waived by the reason that there was no demurrer to the complaint and the parties proceeded throughout the trial with the evident view that all of the issues adjudicated were properly before the court. We find no error to justify a reversal of the judgment.
The judgment is affirmed.
Conrey, P. J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 4, 1921, and the following opinion then rendered thereon:
THE COURT. — The application for a hearing in this court after decision by the district court of appeal of the second appellate district, division one, is denied.
We are not prepared to accede to the unqualified statement that gross negligence is the equivalent of bad faith as that term is used in section
Upon looking into the evidence in the case we are satisfied that there was sufficient therein to justify the trial court in finding that the conduct of the defendant in so refusing to perform its contract with the plaintiff amounted to bad faith within the meaning of that term as used in said section
Shaw, J., Sloane, J., Shurtleff, J., Lawlor, J., and Lennon, J., concurred. *72