82 Cal. 533 | Cal. | 1890
Judgment for plaintiff, motion for new trial denied, and defendant appeals from both judgment and order.
The complaint i§ in three counts. The first is for the recovery of five hundred dollars, money paid on account of the purchase of an interest in certain lands, under an agreement that if upon examination of abstract it was found that title was not good the money was to be refunded, and alleging that upon such examination it -was found that the title was not good; the second, upon the common count for money had and received; and the third, for the recovery of the same money upon an alleged parol agreement to repay the same and rescind the contract mentioned in the first count. Upon the trial the claim under the third count was abandoned, and no findings are presented on the issues presented by said third count and the answer thereto.
The answer admits the making of the contract set out in the complaint, and the receipt of the five hundred dollars on account of the same, but contains numerous denials going to the legal effect and meaning of the contract, and then proceeds to deny that the title as shown by the abstract furnished by defendant was defective, and alleges that such title was good and valid; and follows with a statement of the facts shown by the abstract upon which defendant says plaintiff bases the claim that said title was not good, and to claim there
Defendant also filed a cross-complaint, setting out that on the thirty-first day of December, 1887 (which was the date of the written agreement set out in plaintiff’s complaint), plaintiff and defendant made and entered into an agreement for the sale by defendant to plaintiff of a certain interest in certain lands, which defendant alleges are the same as those mentioned in the agreement sued upon, although they are differently and more specifically described,'—the terms of which agreement he sets out in said cross-complaint. These terms are a combination of those given in the written agreement, and of the other matters which in his answer he alleges were understood and rested in parol at the time of making the written agreement. He then further sets out the furnishing of an abstract of title, the discovery of the alleged defects of title, and avers that within fifteen days after furnishing the abstract plaintiff notified him of the defects discovered, but that he still elected to purchase
It is not pretended in this cross-complaint that any part of the agreement upon which it was based was in writing, but on the contrary, it is expressly stated that the part of it which is claimed to have been made after the examination of the abstract was verbal. While ordinarily it may be true that when it is alleged that two parties entered into an agreement for the sale of lands, if nothing else appears, it will be assumed that the agreement was in writing, it can hardly be so in this case, where the plaintiff in his pleading refers to another agreement made between the same parties at the same time, which was confessedly in writing, and then proceeds to set out a different agreement, which he declares was made in reference to the same property, and containing stipulations as a part thereof, which, by his answer in the same cause, he declares did rest in parol.
This cross-complaint was demurred to .for want of facts, and also for ambiguity and’ uncertainty, and afterward, and before the demurrer came on for hearing, the plaintiff, by leave of the court, filed a second demurrer, which was in effect (though not so entitled) an amended demurrer, made on the same grounds as the original one, but adding other specifications of ambiguity and uncertainty. In due time these demurrers were argued and sustained, when the defendant excepted to the ruling of the court permitting the said second demurrer to be filed, and also to the ruling of the court sustaining said demurrers. This part of the case is brought up on a separate bill of exceptions, and these rulings are relied upon as errors on this appeal. v
Without passing upon the question of whether a demurrer is a pleading which the party has a right to
It was not error, in making the order sustaining said demurrer, to omit to say anything about leave to amend, as the defendant did not ask for such leave, or for any order on that subject.
On the issues framed by the complaint and answer, the case was tried before the court, without a jury, and the court found, among other things, that, on the thirty-
“ Receipt and contract on sale of land.
Los Angeles, Cal., December 31, 1887.
“Received this date, from William D. Smith, the sum of five hundred dollars ($500),lawful money of the United States of America, being a deposit and part payment on account of a bargain and sale made to him this day of a certain lot, tract, or parcel of land, lying, situate, and being in the county of Los Angeles, state of California, bounded and described as follows: —
“Being an undivided one-sixth interest in the 509.84 acres of the Rincon de los Bueyes ranch, situate in Los Angeles County, California, conveyed by José de Arnaz, February 3,1887, to Joseph Moffat and H. Olay Graham.
“ Said tract of land, above described, having been sold to said William D. Smith, this day, for the sum of eighty-four hundred and ninety-seven dollars ($8,497), the balance to be paid as follows:—
“ Twenty-five [hundred ?] ($2,500) to be paid within ten days, $1,461 on or before twelve months from date, and $1,461 on or before twenty-four months from date, with interest at eight per cent per annum, interest payable simi-annually, and assume and pay one sixth of a certain mortgage for $15,450 now on said ranch.
“ The title to said above lands to prove good, or no sale, five days being allowed to examine abstract or certificate and pass upon title after abstract or certificate is delivered. If the remaining payments be not made according to this agreement and contract, the above-mentioned deposit to be forfeited without recourse. If title prove defective, said deposit to be returned.-.
“ J. M. Taylor, Agent.”
“I hereby extend the time of this agreement five days longer from the date hereof. J. M. Taylor.”
Two sets of findings were filed, one on the 13th and one on the 14th of May, 1888, and judgment is entered May 17,1888.
One of the errors of law assigned and relied upon is, that the court erred in filing the second set of findings. 'They are confessedly exactly like the first, except that in the second in No. 11 the court states that the plaintiff knew of the existence of an encumbrance amounting to $15,450,—a statement omitted from the findings as first filed; and in No. 12 the mortgage liens are set forth, which was not done in the first.
With the exception of the two corrections which we have noted, the paper indorsed “findings,” filed on the 14th, was practically a copy of the one so indorsed and filed on the 13th, and if the filing of the second was error, it was not a prejudicial one, for all that there was new in it was finding of certain probative facts, not necessary to be found, the ultimate facts already found being sufficient. Both sets of findings were filed before judgment. Both are brought up to this court. Either is sufficient to support the judgment, and there is nothing in either that conflicts with the other in any matter material to the issues in the cause or the judgment entered. While it is true that a court cannot change its findings after the entry of judgment without granting a new trial, and doing it upon new trial, it does not follow that it may not make such modification or correction of its findings before judgment as shall make them conform to the truth and cover the issues in the cause.
We have carefully examined all the testimony in the record, and are satisfied that the evidence supports the findings. It only remains to consider whether there
Appellant contended at the trial, and contends here, that he had the right to prove by evidence aliunde that the claims of persons who appeared by the abstract of title to be asserting title to land adverse to the title which he offered, and who had suits pending regarding the same, were groundless.
Many of his exceptions are to rulings of the court in rejecting evidence offered for that purpose. We are not called upon at this time to determine what would have been his rights in this regard, if his contract had been simply one to make good title. But that was not the force or effect of his bond. The only fair interpretation of this contract is, that he was to furnish an abstract of title, — a paper prepared by a skilled searcher of records, which should show an abstract of whatever appeared on the public records of the county affecting the title,—and that this abstract must show good title, or there was no sale, and in that event he was to return the money. He did furnish such abstract, and the plaintiff found, and the court, upon sufficient proof,—in fact upon the admissions of the defendant himself, as well as upon presentation of the abstract,—sustains the finding that the abstract did not show good record title. Under that contract, the plaintiff was not bound to make any investigation outside the abstract, or to take the chances of any litigation which the abstract showed to be either pending or probable. The court therefore did not err in rejecting any of the evidence offered for this purpose.
Appellant claims that at the time of the making of the contract the plaintiff had knowledge of the existence of encumbrances upon the land other than the $15,450, of which he was to pay the one sixth, and that there -was then a parol understanding or agreement between them as to how, when, and by whom the encumbrances in
It was also claimed on the part of the appellant that long after this examination and rejection of the title the parties made an oral agreement, whereby defendant undertook to quiet his title against all adverse claimants shown by the abstract, and that upon his doing so the sale was to be concluded, and many exceptions were saved to rulings of the court rejecting evidence offered in support of his claim, and these rulings are now assigned as error. These rulings were not erroneous. The agreement in writing had already ceased and determined, by its own terms, and the action of the parties under it. According to its express provisions there was “no sale.” Defendant was already bound to repay the five hundred dollars, and it had already been demanded of him. This subsequent agreement, then, if there was one, must stand or fall by itself. If there was such an agreement, it was one for or in relation to the sale of an interest in lands, and was not in writing. It was therefore void under section 1624 of the Civil Code. But even if it was, as defendant contends, an alteration or modification of the former written agreement, it was void under section 1698 of the Civil Code, being an unexecuted oral agreement. So that in either event the defendant was not entitled to introduce evidence in support of it. But in this case, as in. the other, the parties
In the course of the trial it was shown that the defendant, in the first instance, presented to the agent of plaintiff a certificate of title, as distinguished from an abstract of title. This certificate exposed the fact of the existence of some adverse claims, and the agent of plaintiff declined to accept it, when it was agreed between the agent and defendant that defendant should furnish an abstract instead, when it should be referred to Judge Minor for examination, and plaintiff would accept Minor’s opinion as to whether it showed good title or not. Defendant moved to strike out this evidence, on the ground that it was incompetent to change the terms of the written contract. This motion was denied, and defendant excepted, and now assigns this ruling as error. There was no error in denying the motion on the ground upon which it was made. The evidence was, perhaps, irrelevant and immaterial, but it worked no injury to defendant, and certainly did not tend to show a change of the terms of the written contract.
The foregoing covers a review of all the thirty-two exceptions taken by defendant, and now assigned as errors of law. It follows from the conclusions reached that the judgment and order appealed from must be affirmed.
So ordered.
Paterson, J., concurred.
Works, J., concurred in the judgment.
Hearing in Bank denied.