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Finn v. Goldstein

District Court of Appeals of California, First District, Second Division
Dec 30, 1926
251 P. 964 (Cal. Ct. App. 1926)


Hearing Granted by Supreme Court Feb. 24, 1927.

Appeal from Superior Court, City and County of San Francisco; Frank J. Murasky, Judge.

Action by Joseph T. Finn against Rose Goldstein. Judgment for plaintiff, and defendant appeals. Reversed. COUNSEL

Milton T. U’Ren and Albert Jacoby, both of San Francisco, for appellant.

R. M. J. Armstrong, of San Francisco, for respondent.

J. J. Dunne, of San Francisco, amicus curiæ .



Action in specific performance. The judgment of the trial court was in favor of the plaintiff, and the defendant has appealed, bringing up the judgment roll only.

The plaintiff’s complaint was as follows:

"Plaintiff complains of defendant and for cause of action alleges:

"I. That the defendant on the 19th day of March, 1923, was the owner in fee of the premises hereinafter described, and that she then and there entered in an agreement with the plaintiff, executed under their names and seals, whereby plaintiff agreed to buy, and defendant agreed to sell, the property hereinafter described; that said agreement was in the words and figures following, to wit:

"‘San Francisco, March 19, 1923.

"‘Received from Mr. Joseph Finn fifty dollars. Deposit on three flats and four stores located on Twenty-Fourth street known as Nos. 3257 to 3269 Twenty-Fourth street.

"‘Cost of property-$11,500.

"‘Deposit to stand good until April 2, 1923.

"‘[Signed] Rose Goldstein.

"‘I accept above agreement.

"‘[Signed] Joseph T. Finn.’

"II. That the plaintiff has duly performed all the conditions of said agreement on his part to be performed.

"III. That on the 27th day of March, 1923, at the city county of San Francisco, Cal., the plaintiff tendered to defendant the sum of fifty-nine hundred and fifty ($5,950.00) dollars and requested a conveyance of said premises according to the terms of said agreement, but defendant then and there, and ever since, has refused to execute and deliver such conveyance.

"IV. That there are two liens upon said property as follows: A deed of trust in the sum of fifty-five hundred ($5,500.00) dollars, executed to the Title Insurance & Guarantee Company, trustee for Jerome S. J. Bettman, dated April 20, 1922, and recorded on April 25, 1922; and another deed of trust in the sum of one thousand ($1,000.00) dollars, executed to the Title Insurance & Guarantee Company, trustee for Henry Redlick, dated November 14, 1922, and recorded in the office of the county recorder of the city and county of San Francisco; that the total amount due on said deeds of trust is the sum of sixty-five hundred ($6,500.00) dollars; that the equity of defendant in and to said property is the sum of five thousand ($5,00.00) dollars.

"V. That the plaintiff ever since the 27th day of March, 1923, the time of said tendering of the said sum of fifty-nine hundred and fifty ($5,950.00) dollars, has kept said money so tendered on deposit in the Title Insurance & Guarantee Company, located at 250 Montgomery street, San Francisco, Cal., and that said money is unproductive, and is ready to be paid over to said defendant on said agreement, and in this court.

"Wherefore," etc.

The defendant interposed a general demurrer, the demurrer was overruled, and the case went to trial before the trial court sitting without a jury. Thereafter, and before the findings were signed, the plaintiff filed an amendment by which he added to his complaint:

"That the sum of eleven thousand five hundred ($11,500) dollars is not disproportionate to the value of said property."

The defendant filed another demurrer, it was overruled, and the defendant answered, denying many of the allegations contained in the complaint, and denying the allegations contained in the amendment. The trial court made findings in favor of the plaintiff and a judgment was entered in his favor.

The first point made by the appellant is that the demurrer should have been sustained. For several reasons we think that on this point the appellant is clearly correct. In his complaint the respondent sets forth the writing and alleges that it is the contract on which he relies.

Let us test the pleading first by the law governing specific performance. The general rule governing the case was quoted by Mr. Justice Richards in Patterson v. Reddish, 56 Cal.App. 197, 202, 204 P. 565, 567, as follows:

"It is not necessary to cite authorities to support the proposition that the court, when called upon specifically to enforce an agreement, must ascertain the terms of the instrument sought to be enforced from the instrument itself and not from the construction put upon it in the pleading demanding its enforcement. A complaint in specific performance cannot supply the deficiencies which may render the contract nonenforceable in equity."

Speaking of a similar paper, in Allan v. Bemis, 120 Iowa, 172, 180, 94 N.W. 560, 562, the court said:

"Thereby Bemis does not agree to sell, nor does Allan agree to purchase. That parties may by writing make admission of a prior oral contract or agreement to sell lands is not to be doubted. And an oral contract thus established may be enforced as of the time made as fully as the subsequent writing makes disclosure thereof. It is well settled, however, that in all such cases the court cannot look beyond the writing to ascertain the terms, conditions, or provisions of the contract. [Citing cases.]"

In the case of Heller v. Cochran, 280 Pa. 579, 124 A. 737, the Supreme Court of Pennsylvania had before it a writing which was more definite than the writing in the instant case, but that court quoted with approval as follows:

"The agreement in this case is too vague and indefinite to permit equity to enforce it. *** In addition to the vagueness in the description of the property, there is nothing contained in the agreement relative to the terms or time of payment or delivery of the deed; all of these matters will have to be established by parol evidence, and, indeed, as to some of them the bill alleges verbal agreements were entered into."

Speaking of a writing that was more formal than the one before us, in the case of Buckmaster v. Bertram, 186 Cal. 673, at page 676, 200 P. 610, 611, the court said:

"On its face the agreement is too uncertain to be enforceable by way of specific performance."

Let us now test the pleading under the statute of frauds. To be sufficient as a memorandum coming within the provisions of the statute of frauds the writing should state the price for which the property is sold. Breckinridge v. Crocker, 78 Cal. 529, 535, 21 P. 179. The recital, "Cost of property-$11,500," is by no means a clear statement that it was an attempt to state the sales price. If it was an attempt to state the sales price, it does not appear whether the plaintiff was to pay $11,500 over and above existing incumbrances or otherwise. Speaking of such a writing, the Supreme Court of Connecticut, in Wetkopsky v. New Haven Gas Light Co., 88 Conn. 1, 8, 90 A. 30, 33, Ann. Cas. 1916D, 968, at page 970, said:

"The two receipts which were in evidence were not sufficient memoranda of any contract to satisfy the statute. They did not show any sale, present or prospective, of the house, and would apply as well as money received on a lease as on a sale of the house."

In Patterson et al. v. Underwood, 29 Ind. 607, at page 610, the court said:

"The receipt is not a sufficient memorandum in writing to take the case out of the statute. It contains no promise to convey. There was no note or memorandum, therefore, in writing, of the contract."

From the allegations contained in the complaint it appears that the property was incumbered; that the plaintiff has offered to assume the incumbrances; and that he has offered to pay the defendant the balance in cash. If these offers were made pursuant to the agreement, such terms of the agreement were material elements of the contract, and as such should have been contained in the memorandum relied on. Fritz v. Mills, 170 Cal. 449, 458, 150 P. 375. However, the writing is wholly silent on these matters. The writing contains on cross-reference to any other writing, therefore no other writing can be said to be a part of the contract. Craig v. Zelian, 137 Cal. 105, 106, 69 P. 853; Eaton v. Wilkins, 163 Cal. 742, 746, 127 P. 71. It follows that the written instrument set forth in the complaint was insufficient as a memorandum within the statute of frauds.

As the writing did not purport to describe the real estate by metes and bounds, the pleader proceeded to do so. In so doing he added to the writing; but he had no right to do more than lay a foundation for introducing evidence of the extrinsic facts. To do that he should have pleaded the extrinsic facts. Having failed to do so, the complaint was insufficient. Marriner v. Dennison, 78 Cal. 202, 20 P. 386; Eaton v. Wilkins, 163 Cal. 742, 745, 127 P. 71; Joyce v. Tomasini, 168 Cal. 234, 239, 142 P. 67.

In this state it is provided by statute that a court of equity may not grant a decree in specific performance, unless it appears that, as to the defendant, the contract is just and reasonable and is supported by an adequate consideration. Civil Code, § 3391. To meet the requirements of the statute the pleader amended his complaint by adding the amendment which we have quoted above. The amendment fell short of the requirements. Joyce v. Tomasini, 168 Cal. 235, 237, 142 P. 67.

The judgment is reversed.

We concur: PRESTON, Presiding Justice pro tem.; NOURSE, J.

Summaries of

Finn v. Goldstein

District Court of Appeals of California, First District, Second Division
Dec 30, 1926
251 P. 964 (Cal. Ct. App. 1926)
Case details for

Finn v. Goldstein

Case Details

Full title:FINN v. GOLDSTEIN.

Court:District Court of Appeals of California, First District, Second Division

Date published: Dec 30, 1926


251 P. 964 (Cal. Ct. App. 1926)