Gordon v. Perkins

The respondent had judgment against the appellant for the sum of $2,500 on account of damages alleged to have been suffered by the respondent by reason of the failure of the appellant to convey lands and premises in

“Madera, California, December 31st, 1924.

“Mr. Virgel Gordon,

“Madera, California.

“Dear Sir:

“In the event that I purchase that certain property described as N. E. ¼ of N. E. ¼ of Section 35/11/17 at the Commissioner’s sale, I agree to assign the commissioner’s certificate upon payment of $5000.00 cash and your note for $5000.00 payable 1 year after date with interest at 7%, payable semi-annually.

“In the event that I do not purchase this property, and that one of the defendants comes in. and buys it for the total amount of principal, interest, costs, etc., then this offer is to be of no further force and effect.

“As soon as the sale is made, you can deposit the $5000.00 and your note with the Security Title Insurance and Guarantee Company of Madera and I will furnish you with the proper assignment of the Commissioner’s certificate.

“Tours truly,

“S. J. Perkins.”

The complaint alleges that the respondent and appellant entered into an agreement by which the respondent was to purchase, and the appellant was to sell, forty acres of land in Madera County, described as the northeast quarter of the northeast quarter of section 35, township 11 south, range 17 east, according to the terms and conditions of a certain memorandum of agreement; being the writing set forth herein. The complaint further alleges that after the execution of the writing herein set forth, the appellant, for the purpose of avoiding the terms and conditions of said writing, contracted to sell said property to one Giovanni Oberti at a higher price, and that in pursuance thereof, at a commissioner’s sale of said property which was thereafter made, said Oberti purchased said property at the commissioner’s sale for the sum of $12,500. The language of the complaint is: “That said sale was nominally made to one G. Oberti, but was in fact made to said defendant, S.

While the complaint alleges that an agreement was entered into for the sale of certain real property (describing the same), according to the conditions set forth in a certain memorandum in writing, the liability and rights of the parties to this action must be measured by the instrument in writing. To the respondent’s complaint the appellant interposed a demurrer, setting forth, among other specifications, that the complaint does not state facts sufficient to constitute a cause of action. Appellant’s demurrer was overruled, and the appellant filed an answer admitting the execution of the instrument in writing, but denying that the appellant ever agreed to sell the property described in the first paragraph of respondent’s complaint. The answer also sets forth that the writing set forth in plaintiff’s complaint does not conform to the requirements of subdivision 5 of section 1624 of the Civil Code, nor to subdivision 5 of section 1973 of the Code of Civil Procedure. The answer also denies all the other allegations contained in the complaint, and by way of a further defense, alleges that the writing set forth in respondent’s complaint was a mere offer without consideration, and was withdrawn prior to the respondent complying with, or stating compliance with, any of the terms of the offer.

The description of the real property set forth in the writing herein is as follows: “Northeast Quarter of Northeast Quarter of Section 35, 11/17.” No county or state is mentioned. There is no designation of the township, nor is there any description of the range. If the figure “11” be construed as referring to a township, there still remains to be supplied the identification or statement' of whether it is north or south. Likewise, if the figure “17” be construed to mean “range”, it is still wanting in the description as to whether it is east or west, and of what meridian. Nor is there anything in the writing which designated any tract of land by naming or setting forth any particulars constituting a description from which a surveyor might take the description and apply it to the earth’s surface. It is evident that “Northeast quarter of Northeast Quarter of Section 35, 11/17” does not describe or point out any particular portion of the earth’s surface, or furnish sufficient data so that a surveyor could go with certainty to any particular forty acres of land and apply the description thereto.

In 27 C. J., page 270, section 321, the rule relating to the requirement of the subdivision of section 1624 of the Civil Code is thus stated: “One of the essential elements of a contract for the sale and conveyance of real property, which must be stated in the contract, or a memorandum or note thereof, is a description of the property to be conveyed. The land must be so described that it can be iden

The respondent’s reply to the appellant’s argument that the memorandum is insufficient to comply with the code provisions is that only a memorandum is required; that the

In 23 California Jurisprudence, page 435, the rule as to the description of property in the .writing is further elucidated as follows: “Real property which is the subject of an agreement must, in the very nature of the case, be so described therein that it may be readily identified. A party seeking performance of a contract to convey is entitled only to a decree for the identical property agreed to be sold. In other words, the court must be definitely made to know the precise property involved. A description of a tract simply by its name may, however, be sufficient if the boundaries are known and well defined. It is to be remembered that ‘that is certain which can be made certain*. So if the description of land contained in a contract is indefinite, extrinsic evidence under appropriate pleadings is admissible to identify the property intended, that is, to apply the

In the case of Allen v. Stellar et al., 106 Cal. App. 67 [ 288 Pac. 855 ], this court had under consideration a writing containing the following: “When I have procured deed to the west % of Lot 17, Tract 1000, from Richard W. Koehler et ux., I hereby agree to sign,” etc. The court said: “There is no allegation in the complaint that Richard W. Koehler et ux., owned any particular tract of land, and without such allegation showing what tract of land Richard W. Koehler et ux. owned, the writing was insufficient to state a cause of action.” A good illustration of where a defective description may be aided by a reference in the writing to a name or designation of the tract, is that found in the case of Eaton v. Wilkins, 163 Cal. 742 [ 127 Pac. 71 ], where the land was referred to as the “Wilkins Home Place”. The description was defective, and the complaint failed to set forth that the Wilkins Home Place was the name of a particular tract or parcel of land, and not having so applied the name given, it was held that the complaint did not state a cause of action. In the case at bar the writing under consideration, as we have pointed out, contains no such name or designation or reference identifying the premises intended, or which can be aided by allegations in the complaint showing that the name or designation used in the writing is that of a particular parcel of land or portion of the earth’s surface.

In answer to the respondent’s contention as to the sufficiency of oral testimony to constitute the contract, the text in 27 C. J., page 267, is sufficient. It reads: “To be sufficient as a note or memorandum under the statute of frauds, a writing must be complete in itself, leaving nothing to rest in parol. The entire agreement must be expressed in the writing. The contract cannot rest partly in writing and

The authorities which we have cited deal with actions for special performance where the sufficiency or insufficiency of the description of the property was involved. This is an action for damages, but we see no escape from the conclusion that if no cause of action for specific performance exists by reason of the insufficiency of the writing relied upon, then, and in that case, no cause of action for damages can be based thereon. If the party seeking damages has no valid writing, or, in other words, valid claim to the premises alleged to be involved, it is evident that he has nothing upon which to base an action for damages. Without a prior legal right to the premises, no injury can arise where no rights are violated. There may be cases where specific performance would be denied, on the grounds of a change of conditions or circumstances, so as to render specific performance inequitable, but that rule cannot be applied where the writing relied upon is in itself insufficient to sustain a cause of action for specific performance. If the rule were otherwise, and that an action for damages could be maintained where the insufficiency of the description was such that specific performance would not be decreed, the code provision itself would be rendered meaningless. However, this question has been decided by the Supreme Court in the case of Breckenridge v. Crocker, 78 Cal. 529 [ 21 Pac. 179 ]. There the action was one for damages and it was held that the action could not be maintained by reason of the insufficiency of the description of the property attempted to be described in the alleged agreement.

The judgment is reversed.

A petition for a rehearing of this cause was denied by the District Court of Appeal on October 17, 1930, and a petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 13, 1930.

Seawell, J., dissented.