82 Cal. 84 | Cal. | 1889
This is an action for the recovery of the sum of ten thousand dollars damages for the alleged breach of a contract for the sale of land. The case was tried before the court without a jury, and the defendant had judgment. Plaintiff moved for a new trial, which was denied, and plaintiff appealed.
There are no findings in the record, nor does it affirmatively appear that findings were waived, but as no point is made on the want of findings, we pass to a consideration of the case on its merits, assuming that the facts found support the judgment.
Appellant makes two points, the first of which is not very clearly stated, but which practically amounts to this: That the evidence does not support the judgment, but on the contrary was such as would support a judgment in favor of plaintiff The other is, that the court erred in excluding and striking out certain evidence.
The contention of appellant is, that certain correspondence between the plaintiff and defendant, taken as a whole, was such as constituted an agreement in writing for the sale by defendant to plaintiff, and the purchase by plaintiff from defendant, of certain lands in Fresno County, at thirteen dollars per acre, one half payable in cash upon the execution of the deed, and the balance in two equal annual installments. It seems from the record that nineteen letters passed between the parties, eighteen of which are given in full in the transcript, and the contents of the other are testified to by
There was no error in excluding the oral testimony which was objected to or stricken out. Plaintiff having failed to prove an agreement in writing, and there being no pretense of part or any performance on the part of either party, evidence tending to show an oral agreement, or an admission that there had been such an agreement, was incompetent and inadmissible. Such sn agreement, if made, was void under the statute of frauds, and furnished no ground of recovery.
Judgment and order affirmed.
Works, J,, and Paterson, J., concurred.