143 P. 1029 | Cal. | 1914
Defendant appeals from a judgment for $2531.25.
No testimony was offered by either party, the judgment resting upon the complaint, the answer, and cross-complaint. In the complaint, filed November 3, 1909, it is alleged that on August 1, 1894, Matthew Turner and plaintiff's agent entered into a certain contract whereby plaintiff sold to said Turner the nine-sixteenths interest in the brig "Galilee" for thirteen thousand five hundred dollars, and by which also Turner bound himself and his heirs to give the privilege of purchase to said Young whenever he should intend to sell the said interest or after his death, "the conditions of such sale or purchase being a reduction of $2250 per annum" on the price of thirteen thousand five hundred dollars. It is averred that the said instrument was recorded in August, 1901; that on the tenth day of February, 1909, Matthew Turner sold and assigned said nine-sixteenths interest in the brig to the defendant corporation; that prior to and at the time of such sale and assignment defendant well knew of the execution, existence, and terms of the agreement between Young and Turner; that Matthew Turner died on February 10, 1909; that on May 14, 1909, plaintiff Young demanded of the corporation defendant a conveyance of the said nine-sixteenths interest, but that such demand was refused. The prayer was for a judgment that defendant execute a proper conveyance to plaintiff of said interest.
The answer admitted the execution of the contract between Young and Turner, but alleged that thirteen thousand five hundred dollars was at the time of making said agreement the full value of the interest sold; "and that it was the intention and contemplation of the parties that the privilege of purchase should be exercised by the plaintiff, if at all, within a reasonable time, and that such reasonable time had long since expired before the death of Matthew Turner." The answer contained the following averment: "And defendant says that the plaintiff never has obligated himself to purchase the said vessel upon any terms and has never made any offer so to do, *674 and that it would now be unreasonable, unjust and inequitable that the plaintiff be allowed to recover the nine-sixteenths interest in the said vessel without the payment of any sum therefor. That the defendant did not render, nor did the said Matthew Turner receive a good or sufficient consideration for the making of the said contract, or for the performance thereof as now demanded by the plaintiff." There was also a statement in the answer that Matthew Turner did not sell his interest in the brig to defendant, but that it was transferred to defendant for convenience, the corporation having been formed by Turner and all of the stock having been issued to him. Finally the answer pleaded the laches of Young in delaying so long to assert his rights, if any, under the contract and set up the alleged bar of the statute of limitations. (Code Civ. Proc., secs. 337, subd. 1, and 343.)
In April, 1911, plaintiff filed a supplemental complaint in which it was alleged on information and belief that on or about March 28, 1911, defendant sold the nine-sixteenths interest in the brig "Galilee" for $2531.25, no part of which had been paid to plaintiff. The prayer was for that sum of money with interest, and the case having been submitted on the pleadings the court gave judgment for said sum of $2531.25 and interest.
Respondent's position is that this is not a suit for specific performance; that the consideration of the contract between Turner and the respondent may not be impeached by mere pleading because the burden of showing want of consideration is on the party seeking to avoid the instrument (Civ. Code, sec.
We think this is in its essence an action for specific performance. As originally drafted, the complaint asked for that relief and nothing else, and the prayer for a money judgment was only made necessary by the sale of the chattel. If there was no original obligation on the part of defendant to convey there was no liability for the conversion of the interest in the vessel. It is the function of a supplemental complaint to set up facts material to the case occurring after the filing of the former complaint. (Code Civ. Proc., sec. 464.) It is not allowable to substitute a new and distinct cause of action by way of supplemental complaint. (Brown v. Valley View Mining Co.,
Respondent cites sections
If we treat the action as one at law for the recovery of specific property, we must conclude that plaintiff is without standing to maintain such a suit, because he had no property either general or special in the thing sought. (Cardinell v.Bennett,
Nor can we regard it as an action for damages for breach of contract because no damages are pleaded. The supplemental complaint merely recites the fact that the interest in the brig had been sold for a specified sum and that no part thereof had been paid to plaintiff. There is no statement that this amount is claimed as damages or that plaintiff was damaged by the transaction, and if so whether the damages equaled or exceeded the selling price.
Defendant did not hold the interest in the brig as a trustee of a constructive trust. Plaintiff's contract was merely one of option which, under its terms, he was not required to exercise at any time unless he chose to do so. When Matthew Turner transferred the property to the defendant, Young had not *677 sought to exercise that option. As it was personal property the most that may be said is that the defendant assumed the risk of liability for damages if it should fail to make a future transfer of the interest formerly owned by Turner in the event that Young should demand such transfer. No trust in the specific personal property could arise unless there were circumstances requiring the fulfillment of the option by the assignment of said property to plaintiff rather than the payment to him of his damages for the breach of the agreement. Plaintiff's argument upon the theory of a constructive trust is completely answered by that which we have said relative to the showing necessary to make a case for specific performance.
The only remedy that plaintiff had, if any, was damages for the breach of contract. Such remedy was not sought by his pleadings and therefore no judgment should have been given in his favor.
The judgment is reversed.
Henshaw, J., and Lorigan, J., concurred.
Hearing in Bank denied.