Grange Co. v. Simmons

Decision Date15 May 1962
PartiesThe GRANGE COMPANY, Plaintiff and Respondent, v. Frank D. SIMMONS et ux., Defendants, Cross-Defendants and Appellants, and Herman Sahlman et ux., Defendants, Cross-Complainants and Appellants. Civ. 95.
CourtCalifornia Court of Appeals Court of Appeals

F. M. Brack, Modesto, for appellants Simmons.

Carlos J. Badger, Modesto, for appellants Sahlman.

Taylor, Taylor & Taylor, Modesto, for respondent.

CONLEY, Presiding Justice.

The plaintiff, The Grange Company, a corporation, sued Frank D. Simmons and Addie Mae Simmons, his wife, and Herman Sahlman and Dorothy E. Sahlman, his wife, to compel them to disconnect the roof of a warehouse from the supports furnished by adjoining buildings owned by plaintiff and to remodel the warehouse in conformity with covenants contained in deeds by which the defendants, successively, obtained title. The Sahlmans cross-complained against Mr. and Mrs. Simmons for damages by reason of alleged fraud in the exchange of the warehouse and a boat for property owned by them.

By its judgment, the court required all of the defendants '* * * to remove the roof of the building * * * and to construct supports for the roof of said building entirely on land presently owned by SAHLMANS,' and awarded damages in favor of the Sahlmans against the Simmonses for $14,300 with interest and costs, with the proviso that the latter may discharge their obligation either by completing the remodeling of the warehouse to the satisfaction of The Grange Company, or by depositing $14,300, interest and costs '* * * in a suitable escrow, to be paid to the SAHLMANS when they have complied with the terms of the judgment in favor of [T]he GRANGE COMPANY.'

The plaintiff is satisfied with the judgment on the complaint, and it does not appeal. The defendants Herman Sahlman and Dorothy E. Sahlman do not appeal from the judgment in favor of plaintiff, and they specifically concede that it is correct, but they do question the judgment on the cross-complaint on the ground that the damages awarded to them are inadequate. The defendants Simmons appeal from the entire judgment; they concede that the covenant in question ran with the land and admit that the Sahlmans are responsible to plaintiff, but they maintain that the covenant was not personal in nature and that it therefore does not bind them; aside from the bare statement that they should not be required to share the cost of replacing the roof, their briefs are silent on the subject, and no authorities are cited in support of their position; their appeal on the cross-complaint is founded on the contention that they were not guilty of any fraud.

Before January 30, 1950, The Grange Company had constructed a group of three adjoining warehouses near the northerly city limits of Modesto. On that date, plaintiff deeded the warehouse in question to Olson Brothers Egg & Poultry, Inc., a corporation; this warehouse was the northerly building of the group of three; it faced east; it had no south or west walls of its own, but its roof rested on the concrete pilasters and walls of the adjoining warehouses. Its east, or front wall, its north wall and its roof were all constructed of galvanized iron. The deed required the grantee on demand to remove the roof from the adjoining Grange Company walls.

By deed dated May 28, 1953, the defendant Frank D. Simmons secured title to the warehouse from the Olson Brothers; he was specifically advised of the requirement for the removal of the roof, and as at that time the estimated cost of complying with the covenant was approximately $2,500, Simmons secured a $2,000 discount from his originally agreed price for the warehouse from Olson Brothers. Later, an additional strip of land bordering the warehouse was deeded by The Grange Company to Simmons in order to give him ample leeway to make the changes in question, and this deed contained covenants and restrictions to the same effect as the former deed.

Mr. Simmons used the warehouse for processing and storing turkey eggs until July 1954, at which time he sold his business to a former employee, Leonard Link; the latter, as lessee, took possession of the warehouse and carried on business there until his death in October of 1959.

In March 1959, Mr. and Mrs. Sahlman, the owners of a motel in Santa Clara County, authorized the sale or exchange of their property by signing a contract with Spratt & Dixon, real estate agents. The latter communicated with Mr. and Mrs. Simmons after Simmons wrote them in reply to a newspaper advertisement, asking about the possibilities of a trade. Under date of May 14, 1959, Mr. Simmons represented by letter to them that the warehouse was free and clear and that there was no present written lease, but that the tenant who had been there for some time would sign a new five-year lease at a monthly rental of $400.

On May 22, 1959, Spratt & Dixon brought Mr. and Mrs. Sahlman to Modesto; they met Mr. Simmons at the warehouse, where Leonard Link was operating his turkey egg business, looked at the building both inside and outside and discussed it for a total of 20 or 30 minutes. While the evidence as to their conversation was conflicting, we are bound by the account given by the Sahlmans which formed the basis for the trial court's finding of fraud. Mr. Sahlman testified that while they were inside the warehouse,

'A. * * * at one point when we were at the very rear of the building, Mr. Simmons patted on the wall and said, 'Look how solid these walls are, and they will last a life time. The roof, too, is made of tin; it will last almost forever.'

'Q. Now, did you notice a difference in the type of walls in the building? A. Yes, some of the walls were made out of cement bricks, and some of the walls were made out of sheet metal.

'Q. As to which type of walls was this reference that you said Mr. Simmons made pertain to? A. To the brick wall, or block wall.'

On June 2, 1959, while Mr. Simmons was in Hawaii, Mrs. Simmons telephoned to Arlo Turner, President of The Grange Company 'That she had applied for a Forty Thousand Dollar loan on the property at the bank, and the bank had discovered this cloud on the title and if anybody called me about it, would I refrain from telling them anything about it.' Mr. Turner testified that he then told her to remove the roof from The Grange Company walls immediately, unless she heard from him in 24 hours. The court found that Mrs. Simmons told her husband, upon his return from Hawaii, of the conversation with Mr. Turner.

As of June 29, 1959, Spratt & Dixon induced the Sahlmans to make a written offer to Mr. and Mrs. Simmons to trade their equity in the motel for Simmonses' warehouse and boat, the 'Blue Moon,' subject to their inspection and approval of the boat. This document was brought to Modesto by Spratt & Dixon, and Mr. and Mrs. Simmons accepted and signed it. On the same day, Spratt & Dixon ordered two preliminary reports of title from the Stanislaus County Title Company, one covering the motel property and the other the warehouse in Stanislaus County. On or about July 3, 1959, Stanislaus County Title Company mailed a copy of the preliminary report relative to the warehouse to Spratt & Dixon. This report contained references to the appropriate recorded deeds in which the covenants and restrictions were contained.

On July 7, 1959, the Simmonses removed their boat to dry dock at Stockton, where it was inspected by the Sahlmans and surveyed and appraised by a Mr. Golightly, their own expert.

On July 21, 1959, the Sahlmans gave final approval to the contract for the exchange of properties by initialing the June 29, 1959, contract. Two days later, Spratt & Dixon prepared, and Mr. and Mrs. Sahlman signed, escrow instructions to the title company. This document was brought to Modesto, where Mr. and Mrs. Simmons signed it and it was deposited with the title company. On July 29, 1959, the parties amended their escrow instructions, and on August 1, 1959, the Simmonses took possession of the motel at Mountain View.

On August 14, 1959, the escrow was closed by the title company, and the various documents were recorded. A week later the title company mailed to Mr. and Mrs. Sahlman a policy of title insurance on the warehouse, which included the same reference to the deeds containing the covenants and reservations that were included in the preliminary report of title. The Sahlmans received these documents on August 22, 1959, and having read the policy of title insurance with great care, they went to Modesto, where they discussed the covenants and reservations with the company employees, Leonard Link, the tenant, Mr. Arlo Turner, President of The Grange Company, and Mr. Edward T. Taylor, attorney for The Grange Company. On September 23, 1959, The Grange Company, through its attorney, made formal demand on both the Simmonses and the Sahlmans that the roof be removed from the walls of The Grange Company's warehouses.

The trial court had ample justification for holding Mr. and Mrs. Simmons as well as the Sahlmans responsible to the plaintiff. The covenant contained in the conveyances by The Grange Company required that Simmons effectuate the changes in question upon demand by The Grange Company.

As is said in 21 C.J.S., Covenants § 8, page 887:

'As a general rule, * * * the acceptance of a deed, whether poll or inter partes, containing a covenant on the part of the grantee is equivalent to an agreement on his part to perform the same, and it is immaterial that the deed is not signed, sealed, or executed by him.'

(See Pedro v. County of Humboldt, 217 Cal. 493, 19 P.2d 776; Marshall v. Standard Oil Co., 17 Cal.App.2d 19, 61 P.2d 520 Barrows v. Jackson, 112 Cal.App.2d 534, 538, 247 P.2d 99.)

In 14 California Jurisprudence 2d. Covenants, Etc., section 13, page 19, it is said:

'It should not be assumed that...

To continue reading

Request your trial
12 cases
  • Alfaro v. Community Housing Improvement System & Planning Assn., Inc., H031127.
    • United States
    • California Court of Appeals
    • February 19, 2009
    ...reliance was justifiable, but it is not, by itself, conclusive. (Seeger v. Odell (1941) 18 Cal.2d 409, 414-417 ; Grange Co. v. Simmons (1962) 203 Cal.App.2d 567, 576-577 ; Gross v. Needham (1960) 184 Cal.App.2d 446, 460 ; Sullivan v. Dunnigan (1959) 171 Cal.App.2d 662, 668 ; Regus v. Schart......
  • Michelson v. Camp, B118052
    • United States
    • California Court of Appeals
    • June 7, 1999
    ...to whether the victim's reliance was justifiable, but it is not, by itself, conclusive. [Citations.]"]; Grange Co. v. Simmons (1962) 203 Cal.App.2d 567, 577, 21 Cal.Rptr. 757 ["A person who is victimized by a fraudulent misrepresentation is not held to constructive notice of a public record......
  • Alfaro v. Community Housing Improvement System & Planning Assn., Inc., H031127.
    • United States
    • California Court of Appeals
    • February 19, 2009
    ...reliance was justifiable, but it is not, by itself, conclusive. (Seeger v. Odell (1941) 18 Cal.2d 409, 414-417 ; Grange Co. v. Simmons (1962) 203 Cal.App.2d 567, 576-577 ; Gross v. Needham (1960) 184 Cal.App.2d 446, 460 ; Sullivan v. Dunnigan (1959) 171 Cal.App.2d 662, 668 ; Regus v. Schart......
  • Sher v. Leiderman
    • United States
    • California Court of Appeals
    • May 29, 1986
    ...do not challenge the ruling as to the third and fourth counts.9 The only other case cited by the Shers, Grange Co. v. Simmons (1962) 203 Cal.App.2d 567, 21 Cal.Rptr. 757, is inapposite here. That case addressed the issue whether a grantee who subsequently sold to another was obliged to perf......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT