Pyle v. Benjamin

Respondents, as real estate agents, recovered judgment against appellant for $600, $500 of said judgment being for commission on the exchange of real estate and $100 for attorney’s fees. From this judgment appellant has appealed.

It appears from the evidence that about the first day of October, 1926, appellant called on respondents at their office and told them that he had a tract of land which he desired to sell or exchange. Through the efforts of respondents a party was found, a Mr. Fred C. Feltz, who was willing to exchange some land he owned for that of appellant, and

Appellant assigns as error the finding of the court that upon the signing of the contract by appellant and the said Feltz, appellant agreed to pay respondents the sum of $500. He contends that if any liability attaches by virtue of the contract, that liability would be the sum of $100 instead of $500, for the reason that it is provided in said contract that the party who refuses to complete the said contract shall pay to the agents the sum of $100 as liquidated damages for the services rendered. Section 1670 of the Civil Code declares that contracts wherein the amount of damage to be paid for breach of the obligation, is determined in anticipation thereof, are void to that extent except as provided in section 1671 of said code, and this latter section provides that parties to the contract may agree upon the amount of the damages when from the nature of the case it would be impracticable or extremely difficult to fix the actual damages. In the case of McInerney v. Mack, 34 Cal. App. 153 [ 166 Pac. 867 , 868], the court said: “In such action as this, as a matter of defense, defendant must show to the court by proper pleadings and competent proof that the contracts fall within the law permitting liquidated damages. This does not depend entirely upon the contract itself. Facts must be pleaded and proven from which the court can say as a matter of law that the contract for liquidated damages is valid because from the nature of the case it would be impracticable or extremely difficult to fix the actual damage.” (Sherman v. Gray, 11 Cal. App. 348 [ 104 Pac. 1004 ] Long Beach etc. Dist. v. Dodge, 135 Cal. 401 [ 67 Pac. 499 ] ; Sunmaid Raisin Growers of California v. Paul A. Mosesian & Son, 90 Cal. App. 1 [ 265 Pac. 828 ]; Hanlon Drydock etc. Co. v. McNear, 70 Cal. App. 204 [ 232 Pac. 1002 ].)

Appellant next contends that respondents’ cause of action is barred by section 1559 of the Civil Code, upon the theory that the contract having been made for the benefit of respondents, they not being parties thereto, it was rescinded before this action was commenced. The said section 1559 is as follows: “A contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it." Section 1689 of the Civil Code sets forth the conditions under which a party to a contract may rescind it. These conditions are contained in five subdivisions of said section. Appellant does not indicate in his brief under which of those subdivisions the alleged rescission resulted. He simply states that the contract of exchange was rescinded before November 25, 1927, the date this action was commenced, and that this rescission was effectuated by the open, mutual aban

The court found that at the time said contract was executed, and for many months subsequent thereto, the said Feltz was ready, able and willing to make the exchange, and to perform all the terms and covenants of said contract, agreed by him to be performed, but that on the fourteenth day of November, 1926, appellant refused, and ever since then has refused to make the exchange, or to perform any of the terms, covenants and conditions of said contract which he agreed to perform, and this finding is supported by substantial evidence. Appellant never at any time gave any notice of the rescission of said contract. He admits that he told respondent Wright, on November 18, 1926, that he would not carry out the contract, and had his attorney, on November 30, 1926, appear at the office of the Sonoma County Abstract Bureau, with whom his deed was deposited in escrow, and mark across the face of said deed the word “canceled.” He claims, however, as justifying his repudiation of the contract, that Feltz had not removed all defects from the title to the land which Feltz was deeding him, as by the terms of said contract Feltz was required to do. Admitting that this was true, yet the contract, while providing that the time limit was November 15, 1926, also provided that either of said parties was given sufficient additional time to remove such defects, and, therefore, neither of them could have been in default under said contract until at least a reasonable time for removing the defects had expired. Then again, the trial court having found, upon substantial evidence, that appellant, on the fourteenth day of November, 1926, which was prior to the time limit named in the contract, had breached and repudiated it by refusing to carry out its terms, and had so notified the said Feltz through his agent, the said Feltz was under no obligation to continue to perform his obligations thereunder. (Sec. 1440, Civ. Code; Donlon v. Meyer, 35 Cal. App. 225 [ 169 Pac. 447 ]; Mulborn v. Montezuma Imp. Co., 69 Cal. App. 621 [ 232 Pac. 162 ].) There is no evidence upon which appellant can base the claim that the contract was rescinded. Respondents did not rescind it, or in any way attempt to do so. Even had appellant attempted to.rescind the contract, he could not have done so after he

There is no merit in the contention of appellant that the court erred in overruling his demurrer.

The judgment is affirmed.

Thompson (R. L.)} J., and Pinch, P. J., concurred.