Majority
Plaintiff commenced an action to secure a decree compelling the specific performance of a contract of partition entered into between plaintiff and defendant Arthur Kunde. The remaining defendants are fictitious persons and upon the opening of the trial the action was dismissed as to these.
The parties hereto, plaintiff' and defendant, on July 31, 1923, purchased certain parcels of land and held and farmed o the same as tenants in common until on or about May 19, 1925. On this last date they agreed to partition the property so held by them and in pursuance of this agreement a written document evidencing the understanding of the par
The decree in the court below was in favor of plaintiff, and ordered defendant to execute and deliver to plaintiff the deed demanded, and to pay to plaintiff the $1,000 as agreed.
Appellant contends first that the consideration for the agreement on the part of defendant is not adequate, fair or just, and bases this contention upon the disparity in value between the tract that plaintiff was to receive and the tract that was to go to the defendant. We have examined the record and the evidence adduced on this issue, and find therein a substantial conflict. Ordinarily this would end our inquiry, but in order to meet the contention of appellant that the conflict is not a real conflict, we will discuss the testimony. The only direct testimony as to values offered by plaintiff was that of himself. Against this was the testimony of two or three witnesses. Appellant urges that the testimony of plaintiff is practically valueless in so far as it relates to the question of the value of defendant’s land, because of his interest and manifest biased opinion. This question was for the trial court. If the learned judge of the court below believed the testimony of plaintiff and felt that he was perhaps more qualified to express his opinion than any of the other witnesses called, on this phase of the case an appellate court will not intervene and arbitrarily hold that the trial judge erred in so doing. However, the testimony offered by defendant • himself was not too conclusive. For instance, one of defendant’s witnesses placed the value of the land that defendant was to receive at $20,000, and the value of the land that plaintiff was to receive at $25,000, and added “and that is raising it high.” This same witness then continued to state that in his judgment the defendant has the more marketable land and that the land of defendant would sell for more money than the land of plaintiff. In addition, it appears that the land allotted to defendant is land that adjoins and squares up his other holdings in the immediate vicinity and that his own declarations on the subject of values made at the time indicate his opinion of the fairness of the division.
Nowhere in the authorities on the subject of specific performance is it held that the consideration must be measured by exact equality in dollars and cents. In 23- Cal. Jur., at page 442, the general doctrine is announced as follows: “An adequate consideration does not necessarily mean a
Appellant next contends that the findings on material issues are hopelessly in conflict. There seems to be some ground for this contention, but the conflict in the findings, as pointed cut by appellant, may be easily reconciled by taking the view of the respondent in support of the judgment. The findings refer to the pleadings by paragraph, and the trial court, instead of finding the existence or nonexistence of certain issues tendered by defendant’s answer, made findings as to the truth or falsity of the paragraph in the answer. In his answer defendant first specifically denied the allegations of the complaint and then set up several separate defenses. Defendant construes his answer as being a denial, and then a first, second and third defense. The trial court construed the answer as an entire pleading, and called the specific denials a first defense and from there on numbered each defense consecutively. Therefore, where the findings refer to a paragraph in defendant’s first defense, the appellant contends that it is a finding on his first separate defense, and where the court finds concerning a paragraph of defendant’s second defense, the defendant contends that it is a finding on the same paragraph of his second defense. The findings, as a whole, make it manifest that the apparent conflict results from the method of designating the paragraphs, and is more a matter of form than substance. Further, the findings otherwise sufficiently cover the issues tendered.
The remaining contentions may be grouped under the head of disputed fact. Defendant had sought to have the contract reformed, in a separate defense, and the findings of the trial court were against him. His contentions under this last group are mostly claims as to what his rights might be under the contract as reformed. Without detailing all of the contentions made, a careful reading of the reporter’s transcript, a task which is not incumbent upon us, discloses that the findings of the trial court adverse to appellant’s
The appeal is presented under the alternative method, and neither in appellant’s brief, nor in any appendix thereto, is there printed sufficient of the evidence to disclose the errors complained of. It is not the province of a reviewing court to present, by way of opinion, a detailed argument on the sufficiency of the evidence to support the judgment where it appears that the question is one purely of determining which side shall be believed. The trial court having determined this with the witnesses before it, the controversy is settled.
Judgment affirmed.
Tyler, P. J., and Cashin, J., concurred.