Burgess v. Rodom

Plaintiff seeks to recover damages for breach of contract to purchase real property. The demurrer of the defendant-vendee, Jane E. Rodom, to plaintiff’s second amended

The agreement upon which the seller predicates his right of action acknowledges receipt of $200 as a deposit on the purchase price of the property and provides that “The balance of the purchase price [$5,000.] is to be paid within 30 days from date hereof, as follows, to-wit: Terms to be made as soon as new purchaser arranges for new mortgage now held by Santa Ynez Valley Bank to Burgess (the seller).” The italicized portion of the agreement was inserted by handwriting in the blanks in a “deposit receipt” (California Real Estate Association Standard Form), which was signed by the plaintiff and defendant Jane E. Rodom but not signed by her husband, George.

Respondent contends that the agreement is lacking in essential elements and is fatally uncertain. Hence no cause of action is stated. Her position is well founded.

An action for damages for breach of contract for the purchase or sale of real property will not lie unless the writing contains the essential terms and material elements of such an agreement without recourse to parol evidence of the intention of the contracting parties. (Salomon v. Cooper, 98 Cal.App.2d 521 , 522-523 [ 220 P.2d 774 ]; Dillingham v. Dahlgren, 52 Cal.App. 322 , 326-327 [ 198 P. 832 ].) The law does not provide a remedy for breach of an agreement to agree in the future, and the court may not speculate upon what the parties will agree. (Autry v. Republic Productions, Inc., 30 Cal.2d 144 , 151, 152 [ 180 P.2d 888 ]; Vangel v. Vangel, 116 Cal.App.2d 615 , 631 [ 254 P.2d 919 ].) Hence, as pointed out in Salomon v. Cooper, supra, page 523: “It is indispensable to a valid memorandum of an agreement to sell and convey land that it be complete evidence of the terms to which the parties have assented. If it establishes that there was in fact no contract, if it discloses that upon essential and material terms the minds of the parties did not meet and that such terms were left open for future settlement, then there is no binding obligation upon the seller to convey or the buyer to accept and pay for the land. It will be regarded as merely an inchoate effort. Implications will not be indulged. [Citations.]”

Applying these principles, it is clear that the deposit receipt is incomplete in one essential feature, viz., the terms

The decision in Kline v. Rogerson, 80 Cal.App.2d 158 [ 181 P.2d 385 ], is particularly pertinent here. It is stated on page 160 that “The deposit receipt signed by defendant did not constitute an agreement of purchase and sale by the parties since it expressly provided that the balance of the purchase price was to be paid ‘at $5,000 or more per year, plus interest at 5% or terms to mutual satisfaction.’ Since the parties never agreed upon terms which were mutually satisfactory, there was never an agreement of purchase and sale.”

Plaintiff suggests that the contract calls for payment in cash in 30 days. He would treat as surplusage the handwritten addition. This, of course, he is not at liberty to do. Not only must all the provisions of the deposit receipt relating to payment and terms be read together, but in ease of inconsistency the handwritten portion takes precedence over the printed part. (Code Civ. Proc., § 1862; Civ. Code, § 1651; Body-Steffner Co. v. Flotill Products, Inc., 63 Cal.App.2d 555 , 561 [ 147 P.2d 84 ].)

Plaintiff offers to supply the absent elements of an enforceable agreement by proving that respondent arranged for a loan at the bank for $2,200; that she had more than

In view of our conclusion that no cause of action is stated it becomes unnecessary to consider other questions raised by counsel.

The judgment is affirmed.

Moore, P. J., and McComb, J., concurred.