Opinion
Plaintiffs George F. Yackey and Alma H. Yackey brought this action to recover money damages for breach of contract (escrow instructions) against the Pacifica Development Company (partnership) and its copartners William R. Swann and Edward Gessin.
*780 Upon trial, the court found the release clause in the escrow agreement so uncertain as to render the entire agreement void, unenforceable and upon that sole basis gave judgment for defendants. Yackey appeals. 1
I
Mr. and Mrs. Yackey agreed to sell to the partnership 375 acres of real property located in Fallbrook, California. When the buyers refused to perform the agreement, according to the terms of the escrow agreement, the Yackeys filed this suit for damages for breach of contract. The partnership denied the essential allegations of the complaint and set up affirmative defenses including allegations of fraud in the inducement. The partnership also cross-complained against Mr. Yackey, seeking damages for fraud.
At trial, the defendants abandoned their cross-complaint and rested their whole case upon the premise that the escrow instructions, more particularly the release clause contained therein, were so uncertain as to render the entire contract unenforceable. The trial court after making specific findings in favor of the Yackeys on the existence of the contract, its breach by defendants and $70,785.40 damages, and against the partnership on its fraud contention, concluded “[tjhe release clause set forth in the escrow instructions... was so uncertain as to render the entire agreement void and unenforcible [sic] both in equity and in law.” And that “[b]ut for [such] invalidity... defendants would have been in breach of contract and plaintiffs would have been entitled to damages” totalling $70,785.40. Judgment was thereupon entered in favor of defendants on the complaint and for plaintiffs (cross-defendants) on the cross-complaint. The Yackeys appeal; defendants have not appealed the adverse ruling on their cross-complaint.
II
The Yackeys owned 375 acres of real property, unplanted, undeveloped, consisting of brushlands, canyons and rolling hills. In 1972, they had agreed to sell the property to Sam Ku for the total purchase price of $750,000. That agreement was not fulfilled and the Yackeys were sued by Ku for specific performance. In connection with that action, Ku recorded a lis pendens on thе Yackeys’ property which was not released *781 of record until September 23, 1976. The Yackeys sought to remove this cloud on title to their real property and offered to settle Ku’s lawsuit by the paying of some $20,000. Their offer was rejected by Ku. He demanded $123,500 for a dismissal.
In April 1975, while the Ku v. Yackey lawsuit was pending, Swann was introduced the property by a real estаte broker, Dorothy Gessin, wife of partner Edward Gessin. Partner Swann was an experienced builder and developer. He had built roughly 5,000 units and put together 8 to 10 subdivisions. Swann and Mrs. Gessin met the Yackeys at the property and discussed the physical characteristics of the land at that time. Thereafter, Swann and Gessin instructed Mrs. Gessin to make an offer on the property. Thеre were no further meetings with the Yackeys until after the escrow was signed. Mr. Yackey consulted his attorney about the offer and was advised not to accept it. However, Yackey, against his lawyer’s advice, agreed to accept the Swann offer. Swann selected the escrow company—one which he frequently used—to handle the sale аnd Swann telephoned the information to the escrow officer which was in fact used in preparation of the escrow instructions. Swann caused to be included in the escrow agreement an acknowledgment of the “lis pendens” (Ku’s) action and an instruction to the officer “to close escrow prior to its release.” Before the signing of the instructiоns, Mr. Swann had been advised by the Yackeys’ attorney of the nature of the lis pendens (Ku’s) action. The instructions made specific provision for Swann to assume the defense of that action.
By the terms of the escrow instructions, so dictated by Swann, $750,000 was to be paid for the 375 acres, $150,000 to be paid at close of escrow and the balance, $600,000, to be pаid in the form of a promissory note secured by a purchase money trust deed.
Swann directed the escrow officer to include in the instructions a provision for the following release clause to be included in the trust deed: “Provided the trustor is not then in default hereunder or with respect to the payments due on note secured hereby, at his request, a partial re-conveyance may be had and will be given from the lien or amount to apply on the principal of said note based on the rate of $2500.00 for each acre to be so reconveyed.”
These escrow instructions were dated April 30, 1975, and provided that the sale was to close “on or before 120” days from that date. Es *782 crow did not close within thе 120-day period and thereafter several attempts were made to find a means whereby the date for closing could be extended and at the same time to allow the Swann-Pacifica to commence their development of the property. These efforts proved fruitless, and finally, by letter dated December 2, 1975, Swann’s attorney stated that Yackeys’ last offer was unacceptable and Swann had no counter-proposal to submit at that time. On that date, the attorney for the Yackeys wrote Swann’s attorney to announce that the Yackeys considered Mr. Swann to be in breach of the contract. He had, in fact, not performed any of the terms specified to be performed in the еscrow agreement.
Ill
The trial court concluded the release clause was uncertain and that uncertainty rendered the whole agreement void upon the reasoning expressed in
White Point Co.
v.
Herrington,
In
White Point Co.
v.
Herrington, supra,
However, the
White Point
rule does not fit this case. If we assume for purposes of discussion the release clause is uncertain, yet such
*783
fact does not render the entire contract ipso facto void; only where the terms of such clauses are to be detеrmined at a later date and by mutual consent of the buyer and seller—in effect an agreement to agree—will the contract be deemed void from its inception.
(Stockwell
v.
Lindeman,
Similarly, if such determination is reserved by or given to the seller, a contract is not thereby rendered unenforceable for uncertainty.
(Ontario Downs, Inc.
v.
Lauppe,
Further, the claim of unfairness may be asserted only in an action for specific performance. It is not available to the party defendants here in an action for damages for breach of contract. It may be asserted only as a defense аnd only by the person as to whom the contract is unjust and unreasonable. In this instance it would be the Yackeys who would have the right to claim that the provision for release was unjust. (Civ. Code, § 3391, subd. 2;
Dessert Seed Co.
v.
Garbus,
Finally, if there is an uncertainty or unfairness in the release clause (and if we assume further such clause is not an agreement to agree at a future time) it
may not
be asserted by the party who was responsible for such uncertainty or unfairness. In this case the defendants were responsible for the precise language of the release clause.
(Lawrence
v.
*784
Shutt,
In
Handy
v.
Gordon, supra,
The foregoing case authorities compel our conclusion that if the release clause here were in fact uncertain, that fact will not, in and of itself, render the entire contract void or voidable. Only when the provision contemplates that the actual terms of the clause to be included in the deed of trust will be determined at a future date, and by mutual agreement of the parties, would the entire contract be deemed void from its inception. The sales escrow agreement here contained ho such agreement. To the contrary, the precise wording of the actual release clause to be so included was set forth in haec verba in the instructions.
Furthermore, it would be the right of the Yackeys to avoid the contract were specific performance sought by these defendants. Prejudice if any which might flow from the exercise of the release would be felt by the Yackеys. Their security would suffer if defendants sought to enforce their rights under the clause in an urijust or unreasonable fashion. However, the Yackeys did not seek to disaffirm the contract during the entire term of the escrow. Until the time of the breach, they continued to treat the agreement, including the release clause, as a binding subsisting contract.
Finally, and of great significanсe is the form of action here. This is not an action for specific performance by the buyers but rather an action by the seller for damages. A greater degree of certainty is required in terms of the agreement which is sought to be specifically enforced in equity than is necessary in a contract which forms the basis of an action for damages.
(Lawrence
v.
Shutt, supra, 269
Cal.App.2d 749, 761;
Boyd
v.
Bevilacqua,
*785 IV
Thе discussions thus far have been based upon the premise of an uncertain release clause. This is not the fact here. The release clause language here is clear, .unambiguous. It provides in simple terms that for each $2,500 paid on the principal balance on the promissory note, one acre of the conveyed land be released from the lien of deed of trust securing the note.
The partnership does not suggest the clause was intended to have any other than its plain, clear meaning. Rather, they contend uncertainty arises
from what remains unstated
in the clause. They argue from
White Point Co.
v.
Herrington, supra,
the lack of the further refinement in the language would allow the buyers to select choice portions of land for release and leave the sellеr’s security including only the undesirable parts. Here the record is absent any evidence which would suggest that these buyers would seek to obtain releases of portions of the best portions of the property and allow the unusable portions to remain. What the defendants seek to do is to make a contract uncertain, which on its face is free and сlear from any ambiguity; they wish to speculate upon their own future inequitable approach to obtaining releases. The case of
Simmons
v.
Dryer,
And finally, in
Eldridge
v.
Burns, supra,
V
We conclude that the escrow agreement here was not void. It did not contain an agreement to agree in the future. The particular release *786 clause is certain but perhaps unfair, or capable of being used unfairly as to the seller. However, such potential unfairness to the seller does not render the entire contract void for uncertаinty. Based upon these factual-legal conclusions, the judgment must be reversed and the matter-remanded to the trial court with instructions to enter judgment in favor of the Yackeys and for the amount of damages found by the trial court, to wit, the sum of $70,785.40—if such sum is legally the correct measure of damage.
VI
On this appeal, the partnership contends an improper rule for measurement of damages was used by the trial court. They urge that the “normal” rule should apply, to wit, the difference between the contract price and market value of the property at the time of the breach. This rule necessarily presupposes that the vendor was free to use or dispose of the property on the date of breach.
(Honey
v.
Henry’s Franchise Leasing Corp.,
*787
The depreciated value of the Yackey property, due to the lis pendens, was transitory in nature. When this impediment was removed as a result of a judgment entered in the Yackeys’ favor in the Ku action, the Yackeys were able to resell the property at its true market value free from the inhibiting factor created by the lis pendens. While the “normal” rule of damages is different from that applied by the trial court, it does not purport to be an exclusive rule measure of damages.
(Royer
v.
Carter,
The vendor is entitled upon the default of the vendee to additional damages caused thereby in аn amount necessary to give him the benefit of his bargain. (Honey v. Henry’s Franchise Leasing Corp., supra, at p. 805.)
We conclude that the measure of damages determined by the trial court adequately placed Yackeys in the position they would have been had defendants performed the contract.
The judgment is reversed and remanded with directions to the trial court to enter judgment for plaintiff for the sum of $70,785.40.
Wiener, J., and Focht, J., * concurred.
Respondents’ petition for a hearing by the Supreme Court was denied February 7, 1980.