Furtinata v. Butterfield

Action for specific performance of a contract for the sale of land. Plaintiff had judgment, from which and from the order retaxing the costs, defendants appeal.

It appears from the amended complaint that, on November 14, 1905, defendants entered into a written contract with plaintiff (wife of P. Bianchi; the action concerns her separate property), by which she was let into possession of certain thirty-three and one-third acres of land belonging to defendants, situated in section 4, T. 2 S., R. 8 E., in San Joaquin

Defendants admitted the execution of said agreement, but denied that plaintiff had carried outfits covenants on her part to be performed, and denied most of the other material averments of the complaint; avers that during the term of said

As a separate defense, defendants aver that, in January, 1909, a dispute arose between plaintiff and defendants, “as to whether or not plaintiff was entitled, as she claimed to be, to an extension of one year, under said contract, from the fourteenth day of November, 1908, within which to complete and perform said contract, and that defendants at that time claimed that plaintiff was not entitled to the extension claimed by her, and they accordingly refused to grant plaintiff an extension of one year for the performance of said contract, and so informed the plaintiff herein; but that thereafter, these defendants, reconsidering said matter, and on the first day of February, 1909, and while there was ample time remaining for the plaintiff herein to perform said contract, ... offered in good faith to allow plaintiff herein to continue in possession of the premises described in said agreement, and requested her, both orally and in writing, to perform all the terms of said agreement, and to allow her until November 14, 1909, within which to complete and fully perform the said agreement,” but plaintiff neglected and refused, etc.

By way of cross-complaint, defendants set forth many of the foregoing facts as to plaintiff’s failure to perform her covenants of said contract, and that defendants found it necessary to furnish vines and do the work of replanting and cultivating where vines were missing, which defendants did at their own expense in the year 1909, and for which they claim damages, as provided in said contract, for the labor thus bestowed and also for the cost of the vines and also special damages. Plaintiff, in her answer, denied most of the averments of the cross-complaint, and, upon the issues thus framed, the cause was tried by the court, without a jury, and findings made. The amended complaint was filed in March, 1909, and the findings were made in June, 1909. These findings are adverse to plaintiff upon almost every issue, and the court found that upon the expiration of three years from the date of the contract there was not* ninety-five per cent of living grape-vines upon said tract, 1 ‘ and there is not now, after proper replanting, care and cultivation, in 1909, a ninety-five per cent stand of living grape-vines on said land, and that the failure of

It would seem somewhat paradoxical for defendants to have findings largely in their favor and plaintiff to have the judgment in her favor, and this is about what defendants claim appears from the record. The evidence is not before us, the appeal being on the judgment-roll. There are certain provisions of the Civil Code which appellants seem to have overlooked in their contention for the application of the rule as to mutuality of remedies where specific performance is sought. It does not follow that because the personal services agreed to be performed by plaintiff could not be specifically enforced, the agreement of defendants could not. Nor does it follow that because plaintiff failed to completely perform

Section 3386 provides as follows: “Neither party to an obligation can be compelled specifically to perform it, unless the other party thereto has performed, or is compellable specifically to perform, everything to which the former is entitled under the same obligation, either completely or nearly so, together with full compensation for any want of entire performance.” Section 3392 reads: “Specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party, except where his failure to perform is partial, and either entirely immaterial, or capable of being fully compensated, in which case specific performance may be compelled, upon full compensation being made for the default.”

We must presume that the evidence justified the findings, and, unless the findings fail to support the judgment, it must stand. It is contended that the judgment is not thus supported, because it is found that plaintiff failed to perform her contract and did not produce ninety-five per cent of living vines agreeably to her guaranty, and hence the court was not justified in drawing the conclusion that the contract had been substantially complied with. The court found that defendants undertook the replanting of the 3,817 dead or missing vines, which the contract contemplated defendants might do upon plaintiff’s failure. The court found that after such replanting and proper care and cultivation, in 1909, there was not a ninety-five per cent stand of living vines. How much short of this was the fact is not found, and we must presume that the evidence showed the shortage was but little more than five per cent, and this the court concluded was a substantial compliance with the contract, or, as the statute has it, was compliance “either completely or nearly so,” which, “together with full compensation for any want of entire compliance,” as given by the findings and judgment, it seems to us was an equitable and fair adjustment of- the matter in controversy, and within the spirit and terms of the code rules.

Appellant cites Pacific etc. Ry. Co. v. Campbell-Johnston Co., 153 Cal. 106 , [ 94 Pac. 623 ], where the failure to perform

Among the items of defendants’ cost bill were two items, to wit: “Reporter’s fee, transcribing ninety-one folios at 30e per folio, $27.30”; also the item, “ J. L. Torre, fees as interpreter on March 30th when deposition was read to and signed by plaintiff, $3.00.” Plaintiff filed a motion to tax the memorandum of costs and to strike out the foregoing items, “on the grounds that said items were not necessarily incurred, and that the deposition described therein was taken for the purpose of harassing and intimidating this plaintiff.” This motion was filed on September 7, 1909, and on September 14, 1909, plaintiff served upon defendants’ attorneys a notice that on September 15, 1909, at 10 o ’clock A. M. of that day, at the courtroom of said court, plaintiff would call up her motion “to tax the costs herein for hearing and determination.” The court made an order on September 14th, shortening the time within which said motion would be heard to September 15th, at the hour named in the notice. The motion came on to be heard at the hour named, and, defendants not appearing, the hearing was continued until 1:30 o’clock P. M. of said day, and defendants not then appearing, the court made an order striking from the cost bill said two items. Defendants

The judgment and order are affirmed.

Hart, J., and Burnett, J., concurred.