California Real Estate Co. v. Walkup

The appeal is from the judgment and order denying the motion for a new trial in an action to recover six hundred and seventy dollars, alleged to be the balance due of the first payment under a written contract for the sale of certain real property located in Placer County. It is not disputed that the parties executed said contract, nor is it contended that anything therein contained is against public policy. It is not claimed that any element of unfairness or injustice appears upon its face and it is admitted that appellant paid to respondent the sum of fifty dollars only.

There seems to be nothing obscure in the language of said contract and its purport is easily understood. It was dated February 15, 1912, and therein appellant bound himself to pay one thousand eight hundred dollars for a certain forty-acre tract of land, to pay seven hundred and twenty dollars of this on the said fifteenth day of February and the balance on September 1, following, and to make certain enumerated improvements on said land. Appellant further agreed that respondent should act as his agent for the resale of said forty-acre tract and he promised to devote his time, attention, and ability to the sale of another eighteen hundred acre tract of land known as the Pleasant Grove Gardens.

Respondent agreed to convey said forty-acre tract to appellant, free from any encumbrance, upon the payment of said one thousand eight hundred dollars and to pay him a certain commission for any sales of said Pleasant Grove Gardens ac

It is claimed, in the first place, that “in its origin and essence the transaction here was a contract of service—rather than a contract of sale—under which Walkup, as agent, was to sell the Pleasant Grove Garden tract of 1800 acres in small subdivisions into which it had already been surveyed and platted. ’ ’ In this connection it is urged that the main inducement for the execution of the contract by Walkup was the prospective commissions to be earned by him in said sales and that this consideration failed by reason of the inability of respondent to convey to purchasers the title of said small subdivisions, said respondent not being the owner of said tract but being authorized only to sell it in tracts of not less than three hundred and twenty acres each. By reason of the failure of said main consideration it is claimed that appellant was released from any liability under said contract. It is to be observed, though, that nowhere is it provided in said contract that the land was to be sold in small parcels, although Mr. Walkup testified that prior to the execution of the contract he was told by Mr. Power that “we could subdivide and make sales in small subdivisions, ten, twenty, thirty, eighty or one hundred acres or whatever a man wanted.” If this be considered a material circumstance, however, we must, in support of the conclusion of the lower court, accept the version of Mr. Power. He testified: “Before the execution of these contracts with Mr. Walkup, I showed him the contract of sale which we had. ... I also showed Mr. Walkup another deed from G. A. White to myself transferring the whole of that land previous to February 15th, and also a copy of the assignment of the contract of sale between George

It seems clear from the foregoing that if parol evidence is ' to be regarded at all to supply what it is claimed was omitted from the written contract, there is a sharp and substantial conflict as to whether any such condition contended for was agreed upon and, hence, under the familiar rule, we must resolve the point against appellant.

Moreover, appellant is in no position to avail himself of such claim. If he had made the payment as he agreed to make it, on the fifteenth day of February, and had secured a purchaser for a small parcel of said tract and respondent had been unwilling or unable to convey title to said purchaser, then appellant, upon his theory of said contract, could plausibly maintain that respondent was in default and the basis for rescission might thus have been laid. But Mr. Power testified: “He has never made a definite request asking me

But the foregoing discussion is probably of no vital concern as the only defense set up in appellant’s answer and cross-complaint is based upon false and fraudulent representations alleged to have been made by respondent’s general manager, A. F. Power, first, “that said corporation was the owner of eighteen hundred acres of land near Pleasant Grove, in Placer County, known as Pleasant Grove Gardens, including the tract of land mentioned in plaintiff’s complaint, which it desired to sell”; second, “that said plaintiff and its said manager, A. F. Power, falsely and fraudulently represented to this defendant and cross-complainant that said forty acres of land were good and valuable and that there could be produced thereon grain, vegetables, alfalfa, fruit trees, and berries. Said false and fraudulent representations, at the time the same were made, were known by said corporation and said A. F. Power to be false and were made for the purpose of inducing said defendant and cross-complainant to enter into a contract to purchase said forty acres of land.' ’

The court found: “That it is not true that on or prior to the said 15th day of February, 1912, that the said plaintiff and general manager, A. F. Power, or either of them falsely or fraudulently or at all represented to the defendant that the said corporation was the owner of eighteen hundred acres of land near Pleasant Grove, Placer County, state of California, known as Pleasant Grove Gardens, and it is true that on and prior to the 15th day of February, 1912, the said plain

“That it is not true that on or prior to the 15th day of February, 1912, the said plaintiff and its said manager or either of them, falsely or fraudulently represented to the defendant that the said forty acres of land was good and valuable and that there could be produced thereon grain, vegetables, alfalfa, fruit trees, and berries or any of them, but the court finds the facts to be that the plaintiff and its said manager showed to the defendant certain reports and letters which stated that land similarly situated and of like quality as the said forty acres of land, would produce vegetables, alfalfa, fruit trees, and berries, and the court finds that the representations of plaintiff and A. F. Power were not fraudulent or false and were not known by the plaintiff at that time or at any other time to be false.

The court further finds that the representations made by the plaintiff and its manager, A. F. Power, were not false or fraudulent in regard to the ownership of said land; in regard to the right of plaintiff to sell the said eighteen-hundred acre tract, as agent; in regard to what could be produced on said land or at all.”

It seems almost idle to quote the testimony in support of these findings. That it is abundantly sufficient for that purpose appears beyond peradventure. Mr. Power testified: “I know the defendant, W. B. Walkup. I saw him at our office, 14 Montgomery Street, on February 15, 1912. I had business dealings with him about that time. I first met Mr. Walkup December 12,1911, when he called at our San Francisco offices and stated his desire to invest some money in country lands. He said his business took him around Northern California very thoroughly and he had made a study of California lands and had become satisfied that now was the opportune time to invest on account of the continued growth. I submitted some property to him, and among others, told him of the property that I had been authorised to sell by George A. White of Sacramento, this property being located in Pleasant Grove, Placer County, and I discussed the matter and I showed him photographs of the property. He asked me what I knew about it, and I told him I had no personal knowledge of the subject whatever, excepting I had gone over the property.

The finding as to the ownership of the forty-acre tract is equally supported. Appellant’s claim as to this concerns the certainty of the description contained in the deed. No one can find fault with the rule stated in 2 Devlin on Deeds, sec. 1010, that “the description of the premises conveyed must be sufficiently definite and certain to enable the land to be identified ; otherwise it would be void for uncertainty. ’ ’ The description in the deed, dated November 24, 1911, from G. A. White to the plaintiff, is as follows: ‘ ‘ The north 1878 feet of the west 1852 feet of section 9, township 11 north, range 5 east, situated in the county of Placer, state of California. ’ ’ There would seem to be no difficulty in identifying said land. The north 1878 feet of the west 1852 feet of section 9 obviously covers a strip of land in the northwest corner of said section 1878 feet long on its east and west boundary lines and 1852 feet long on its north and south boundary lines. The west 1852 feet of the section can only mean a strip of land of a uniform width extending along the whole west side of the section and the north 1878 feet of such strip is the portion of said strip between the northerly line of the section and a line drawn parallel thereto and 1878 feet south thereof.

In Jenkins v. Sharpf, 27 Wis. 472 , the court held that the description in a tax deed, as “the north 20 feet of lot 1” was sufficient and that it covered a strip of land 20 feet wide along the whole northerly line of the lot.

In Wilkinson v. Roper, 74 Ala. 140 , it was held that a description reading, “ten acres off the northwest corner of said quarter section” was not an indefinite description but included ten acres in the corner, lying in a square and bounded by four equal sides.

The description here is much less uncertain than in either of said cases. In fact, we can perceive no uncertainty in the terms used nor can we imagine any difficulty in locating the land on the ground.

For another reason, also, stated by respondent, is appellant in no position to raise this question. Respondent was bound

We may reiterate that the admitted facts as to the execution of said contract between plaintiff and defendant and the failure of defendant to make payment as provided, together with the findings of the court upon sufficient evidence against the fraud set up as the only defense of defendant, necessarily required a judgment in favor of plaintiff, and rendered entirely immaterial certain other considerations to which appellant has adverted. Among these is the contention that plaintiff’s denial ‘ ‘ of the material allegations of paragraphs VI and VIII of defendant’s cross-complaint” amounts to nothing and that the court should have made a finding as to these paragraphs. The denial was certainly insufficient. (Holt v. Collins, 154 Cal. 265 , [ 97 Pac. 516 ].) However, appellant at the trial should have called attention to the defect that it might be corrected. On the contrary, the case was tried upon the theory of the legal sufficiency of said denials. But the point is of no vital importance. Both of these paragraphs are inseparably connected with previous allegations as to false representations and they aver the inducing influence of these representations in the execution of the contract. The court, however, having found that no false representations were made and that the only representation made by respondent,— namely, that it was the owner of the forty-acre tract of land, was true, it is apparent that the allegations of said paragraphs VI and VIII become entirely unimportant. Necessarily, defendant could not have been influenced by representations that were not made and whether appellant was or was not induced to enter into the contract by reason of a true statement made by respondent could not, of course, affect the latter’s rights under said contract.

What has been said seems a sufficient answer to the additional contention of appellant that the evidence is insufficient to support the finding as to rescission. Whether he acted

We think there is no sufficient reason for disturbing the judgment and order of the lower court and they are affirmed.

Chipman, P. J., and Hart, J., concurred.