Opinion
2-10-1954
BEVERAGE et ux. v. CANTON PLACER MINING CO. et al. * Civ. 8341.
J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Chico, for appellants. H. W. Glensor, Hilary H. Crawford, San Francisco, for respondents.
BEVERAGE et ux.
v.
CANTON PLACER MINING CO. et al. *
Feb. 10, 1954.
Hearing Granted April 7, 1954.
J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Chico, for appellants.
H. W. Glensor, Hilary H. Crawford, San Francisco, for respondents.
PAULSEN, Justice pro tem.
This is an appeal from a judgment on the pleadings in an action to specifically enforce the corporate respondent's contract to convey certain real property and to quiet the adverse claim of respondent Heney.
Appellant alleged among other things that: 'II 'On or about the 29th day of September, 1947, the defendant company, to-wit: Canton Placer Mining Company, a corporation, was the owner in fee simple of that certain tract or parcel of land situated in the County of Plumas, State of California, more particularly described as follows: 'That portion of the Canton Placer Mining Claim, designated by the Surveyor General as Survey No. 4041 embracing a portion of township 24 North, Range 6 East, M. D. B. & M.; said portion appearing on the Original Official Plat of said township as being in Section 10, and appearing on the Independent Resurvey of said township approved March 17, 1941 by the Commissioner of the General Land Office as being in Sections 3 and 10, to-wit: 'Beginning at Corner No. 51 of said Canton Placer Mining Claim and running thence N. 77? 52' E. 496.3 feet to Corner No. 52; thence S. 80? 00' E. 345 feet to Corner No. 53; thence N. 58? 27' E. 416.38 feet to Corner No. 1; thence No. 29? 14' E. 365.14 feet to Corner No. 2; thence S. 50? 30' E. 270 feet to the North Bank of the North Fork of the Feather River; thence following the North Bank of said River Westerly to where it intersects the Southwesterly Right of Way line of State Highway Route No. 21 (Sign Route No. 24); thence Northerly to the place of beginning. 'III 'On said date of September 29, 1947, plaintiffs and defendant company made and entered into an agreement in writing, wherein and whereby the plaintiffs agreed to buy and defendant company agreed to sell, the lands and real property hereinabove described for the purchase price of $1500.00; plaintiffs then and there paid over unto defendant company the sum of $500.00 in cash to apply on said purchase price, and undertook and agreed to pay the balance of $1,000.00 upon the issuance of a preliminary title report; defendant company, by and through its attorney, agent and representative, Lincoln J. [V.] Johnson, then and there made, executed and delivered to plaintiff a writing, a full, true and correct copy of which said writing is hereto attached and marked Exhibit 'A' and by this reference incorporated herein; in said writing said company acknowledged receipt of said sum of $500.00 so paid by plaintiffs on account of the agreed purchase price, and undertook and agreed to deliver title in and to the said lands and real property, free and clear of all taxes and encumbrances, for the total purchase price of $1500.00. * * * * * * 'V 'At the time of making said agreement, to-wit: September 29, 1947, said Lincoln V. Johnson was the duly accredited, authorized and acting attorney and agent for the defendant company, a corporation, and was duly authorized and empowered by the said defendant company, a corporation, to make and enter into, in behalf of said defendant company, a contract for the sale of said lands and real property in the amount and upon the terms and conditions hereinabove set forth, and was duly authorized and empowered by said defendant company, to make, execute and deliver unto plaintiffs, the writing hereinabove referred to and by reference incorporated herein, and to accept from plaintiffs the sum of $500.00 paid as aforesaid, on account of the agreed purchase price. 'VI 'Subsequent to said date of September 29, 1947, the exact time to plaintiffs being unknown, the defendant company ratified, approved and confirmed the agreement of sale hereinabove set forth and described, and received and accepted from its attorney and agent, the said Lincoln V. Johnson, the sum of $500.00 paid on account of the purchase price by plaintiffs as aforesaid, and ever since has retained and does now retain the said sum.'
Exhibit A reads as follows: 'Sacramento, Calif. Sept. 29, 1947 'Received from Katherine H. Beverage and Robert W. Beverage of Paxton, Plumas Co. Calif. $500.00 deposit on purchase price of seven and one-half (7 1/2) acres, more or less, to south of State Highway at Chambers Creek, (between highway Engineer Stations 561 pounds sterling 58.51 pounds sterling to 577 pounds sterling) being part of Canton Placer Claim. 'Balance of $1000.00 to be paid upon issuance of preliminary title report. 'Title fees to be paid by grantees. 'Property to be delivered by grantor free and clear of taxes and incumbrances. Lincoln V. Johnson for Canton Placer Mining Co.'
No demurrer was interposed, but answers were filed admitting defendants' ownership of the property described in Paragraph II, and generally denying the other allegations of the complaint.
When the case was called for trial plaintiffs' counsel made a long and detailed opening statement, after which defendants objected to the introduction of any evidence on the ground that the complaint failed to state a cause of action. It was claimed that the complaint was defective in several particulars, but the arguments revolved around the question of the sufficiency of the description contained in the agreement, Exhibit A, and the claim that it was void under the statute of frauds. Civ.Code, § 1624.
Over the objection of defendants, the court permitted plaintiffs to introduce evidence to show that the description set forth in Exhibit A was sufficient. Thereafter the court granted a motion to strike such evidence in its entirety and rendered judgment on the pleadings, stating that the motion was being granted on all the grounds stated in the original objection. In view of the conclusions we have reached it is not necessary to discuss all the grounds stated.
The description is obviously so uncertain that, without the aid of extrinsic evidence, it would not afford the means of identifying the land. However that is certain which can be made certain. Civ.Code, § 3538; Mancuso v. Krackov, 110 Cal.App.2d 113, 241 P.2d 1052; Tuck v. Gudnason, 11 Cal.App.2d 626, 54 P.2d 88. It is possible under proper allegations in the complaint that evidence would have been admissible and available to identify the land accurately. In the early case of Preble v. Abrahams, 88 Cal. 245, 26 P. 99, it is said that the description given in a transaction of this kind must at least furnish a key to identification and although it cannot be said with certainty that the description contained in Exhibit A necessarily contained such a key, neither can it be said with certainty that it does not. See, also, Gordon v. Perkins, 108 Cal.App. 336, 291 P. 644.
The evidence admitted by the court and later stricken is not before us for consideration in ruling upon the correctness of a judgment on the pleadings. In determining the sufficiency of the complaint on such a motion the case must be reviewed the same as would be a judgment of dismissal following the sustaining of a demurrer. Gill v. Curtis Publishing Co., 38 Cal.2d 273, 239 P.2d 630; Rannard v. Lockheed Aircraft Corp., 26 Cal.2d 149, 157 P.2d 1; Seeger v. Odell, 18 Cal.2d 409, 115 P.2d 977, 136 A.L.R. 1291. In Allen v. Stellar, 106 Cal.App. 67, 68, 288 P. 855, 857, a judgment of dismissal following the sustaining of a demurrer was affirmed under similar circumstances. The description in the agreement of sale was defective and it was claimed there, as it is here, that it could be made accurate by extrinsic evidence. The court said: 'The complaint does not set forth the agreement as it is written and then follows with a statement of what was intended, or what lands were understood to be described, * * *. It is possible that [the sellers] own no other tract or parcel of land * * *, but it does not so appear from the complaint.'
The court then quoted from Craig v. Zelian, 137 Cal. 105, 69 P. 853, as follows: '* * * 'An agreement for the sale of real property must not only be in writing and subscribed by the party to be charged, but the writing must also contain such a description of the property agreed to be sold, either in terms or by reference, that it can be ascertained without resort to parol evidence. Parol evidence may be resorted to for the purpose of identifying the description contained in the writing, with its location upon the ground, but not for the purpose of ascertaining and locating the land about which the parties negotiated, and supplying a description thereof which they have omitted from the writing.' 'There is nothing in the complaint identifying the description contained in the writing, with its location upon the ground. There is nothing in the complaint showing that the description refers to a particular tract of land, which can be identified from the description given.' The same rule of pleading is recognized in Joyce v. Tomasini, 168 Cal. 234, 142 P. 67, and Gordon v. Perkins, supra.
We think it clear that the complaint was subject to the objection stated. Appellants argue that the property mentioned in Exhibit A was the same property as that described more particularly in Paragraph II of the complaint, but no such allegation appears therein. There is nothing in the complaint to guide the court in ruling on the admissibility of evidence that might be offered to identify the property the parties had in mind. The objection was properly sustained.
It might well be that with proper amendment evidence would be admissible to explain the description without altering or adding to it, and thus to identify the property accurately. No location was given by name, but the agreement was dated at Sacramento, from which it may be assumed the property was located in this State. McKevitt v. City of Sacramento, 55 Cal.App. 117, 203 P. 132. It referred to engineer stations on a state highway at Chambers Creek, gave the acreage involved and stated that it was part of a certain placer claim lying south of the highway. In connection with evidence of defendants' ownership and related matters it may have proved sufficient. (See United Truckmen, Inc., v. Lorentz, 114 Cal.App.2d 26, 249 P.2d 352; Joyce v. Tomasini, supra, Gordon v. Perkins, supra, and Towle v. Carmelo Land & Coal Co., 99 Cal. 397, 33 P. 1126.
Appellants moved to amend, but the motion was denied. It is true that the motion was directed largely to amendments to conform to proof of facts brought out by the evidence that had been stricken and that no formal amendments were offered, but a reading of the record convinces us that such an offer under the circumstances would have been useless and that appellants were justified in reaching the same conclusion. The trial court repeatedly stated that the complaint could not be amended so as to state a cause of action. This was sufficient excuse for not making a more formal motion, although such a motion would have been better practice.
The defects in the complaint--and there are several--were known to defendants long before trial. No demurrer was filed and no notice of intention to move for judgment on the pleadings was given. If appellants' motion to amend was not technically correct this Court still has the power to permit amendment. Section 472c, C.C.P.; MacIsaac v. Pozzo, 26 Cal.2d 809, 161 P.2d 449; Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 128 P.2d 522, 141 A.L.R. 1358.
Under the circumstances disclosed by the record we are of the opinion that the judgment should be reversed with directions to grant leave to plaintiffs to amend their complaint. It is so ordered.
SCHOTTKY and PEEK, JJ., concur. --------------- * Subsequent opinion 278 P.2d 694.