Hopkins v. Lewis

Action to enforce the specific performance of a contract for the sale and purchase of land. A demurrer to the second amended complaint for want of sufficient facts and that the action is barred by sections 337 and 343 of the Code of Civil Procedure was sustained, and, plaintiff declining further to amend her complaint, defendant had judgment, from which plaintiff appeals.

It appears from the amended complaint that on April 8, 1904, defendant executed and duly acknowledged an instrument in writing whereby she authorized and empowered Horn-Sinclair Co., a corporation, as her agent to sell certain described lots situated in Petaluma, “for the period of until sold from the date hereof, and thereafter, until said agency is withdrawn in writing, for the sum of $300 net ($300) dollars.” The contract further provides that defendant will pay said company .“upon finding a bona fide purchaser for said property-per cent of the selling price. ’ ’ There is a further

“Petaluma, Cal., April 8, 1904.

“I hereby bind myself to buy the within-described property at the price and on the terms named herein; hereby agreeing to pay the balance of the purchase-money as specified above, but only if the title is found perfect. If the title is not found perfect, the seller then is to be allowed thirty days to make the title perfect and if it is not made perfect within that time I am released from this contract, and my deposit is to be at once returned. L. W. Hopkins.” It is then averred that “defendant has never at any time since the 8th day of April, 1904, furnished an abstract of title to the property described in the agreement, set forth in paragraph II (the first of the foregoing documents) and, on the 16th day of December, 1909,

the plaintiff made a written demand upon the defendant requiring the defendant to procure and furnish to the plaintiff for her use, an abstract of title of the lands and premises described, and the defendant has failed, refused and neglected to furnish the abstract of title, as agreed upon by her by the terms of said written agreement” (the agreement first above referred to). It is then averred that, on March 15, 1910, the said corporation, on behalf of plaintiff, served a written notice on defendant (which is set out in the complaint) informing defendant of the sale and its terms, made to Hopkins on April 8, 1904, and further informing her that said Hopkins ‘‘has this day [March 15, 1909] paid to us the balance of $500, and has waived the furnishing of the abstract of title which she heretofore and on the 16th day of December, 1909, demanded of you.” Then follow averments of tender of $600 and a deed conveying the property to Hopkins and a demand that defendant execute and deliver said deed to said Hopkins. Plaintiff, Hopkins, in writing, as part of the foregoing paper, joins in the tender of the $600 and demand for a deed. It is further averred that, on April 2, 1910, plaintiff tendered to defendant $600 and a deed duly prepared and demanded its execution by defendant, and that defendant refused to execute the same. Ability and willingness to pay the purchase price is averred and that a deposit of said amount has been made in a bank at Petaluma for the purpose of paying said purchase price. It is also averred that the price agreed to be paid for said lands was just and reasonable and the value of said lands; that the said contract, first above referred to, was entered into by defendant without any misrepresentation or unfair practice of any person, and that ever since said April 8, 1904, defendant has been, and now is, the owner of said land, and has been and is able to make and deliver plaintiff a deed thereto.

It seems to be conceded by both parties that the demurrer was sustained because the action was barred either by laches or by the provisions of the code sections referred to, or both. No other ground for the decision is discussed in the briefs.

Plaintiff’s position is that there was an obligation on defendant to furnish an abstract of title as a condition precedent to any act of plaintiff by way of tender or demand of deed and, until such abstract was furnished, the statute of limitar

The corporation was the agent of defendant and as such made the contract with plaintiff, but the contract of defendant with her agent is distinct from that made with plaintiff. In the contract of agency there was a provision that defendant would furnish an abstract, but no such promise was made by the agent in its contract with plaintiff, and it is not alleged in the complaint that its agreement with plaintiff was intended to include such promise. The language is: “10 days are allowed for legal search of title after the delivery of complete abstract, ’ ’ but by whom this abstract was to be made and at whose cost, or when, does not appear by the contract nor by any averments of the complaint. The plaintiff, in her complaint, refers to the agency contract, but it formed no part of her contract or of the terms on which she agreed to make the purchase. The agent could have agreed to furnish an abstract, for it was so authorized, but it did not do so. It nowhere appears in the contract with plaintiff or in the complaint that she knew anything about the terms of the agency contract or acted with reference thereto. So far as we can see, plaintiff’s rights must be determined upon her contract with defendant’s agent. It does not appear that either the agent or plaintiff took any steps toward consummating the sale, after the contract was entered into, for nearly six years. It does not appear that defendant knew, until in 1910, that the agent had made a sale to plaintiff, nor does it appear that either the agent or plaintiff made any demand on defendant for an abstract, or that plaintiff made any such demand on the agent, until after this long lapse of time. It may be true, as alleged in the complaint, that the price agreed upon “was an adequate consideration for the land” at the time the agreement was entered into, and that the land

It seems to us a fair inference from all the facts, so far as disclosed, that plaintiff made up her mind not to purchase the property or she would not have waited six years for an abstract which she now says it was defendant’s duty to have furnished at least within a reasonable time, there having been no stated time named for its delivery. The equities of the case may be seen if we reverse the parties and suppose the defendant (having knowledge of the contract, which she did not), after six years of inaction, had, without any explanation or cause for her delay, come forward with an abstract showing perfect title. No court would have enforced the contract against plaintiff. But if it may be said that there was' an implied obligation on defendant’s part to furnish the abstract, there being no time stated in which to perform this duty, the law would have given defendant but a reasonable time and, at its expiration, plaintiff would have had the right to withdraw from the contract. The statute would also at

In that view we think the action would be barred. Plaintiff could not keep silent for six years, asserting no right whatever, making no demand for an abstract, expressing no willingness to complete the purchase, doing no act in furtherance of her original purpose, without giving rise to the presumption that she had acquiesced in defendant’s default and justifying defendant in so treating her contract. In Marsh v. Lott, 156 Cal. 643 , 648, [ 105 Pac. 968 ], the court states the rule to be, as given in 26 American and English Encyclopedia of Law, page 80, that where, after defendant’s violation or an express repudiation of his contract, the plaintiff delays to proceed for such length of time as to constitute acquiescence in defendant’s breach, or a presumption of abandonment of his right to specific performance, relief in equity will be denied. We think the facts here bring the case within this rule.

The question of plaintiff’s laches could be raised by the general demurrer without specifically alleging laches. It was said in Kleinclaus v. Dutard, 147 Cal. 245 , 250, [ 81 Pac. 516 , 517]: “It is settled in this state by the two California eases last cited that the defense of laches may be raised by demurrer, the defense being in substance, as said in one of the eases, that the bill does not show equity, or, in the language of our statute, that the complaint does not state facts sufficient to constitute a cause of action.” It would seem to be logical that, if laches shows want of sufficient facts, an averment of want of facts could be supported by showing laches. (See, also, Marsh v. Lott, 156 Cal. 643 , [ 105 Pac. 968 ].) We are unable to discover any ground on which the complaint may be held sufficient.

The judgment is affirmed.

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