40 Cal. 535, 2,346, Barfield v. Price

Docket Nº:2,346
Citation:40 Cal. 535
Opinion Judge:TEMPLE, Judge
Party Name:MARGARET BARFIELD, Appellant, v. PASCAL PRICE, et al., Respondent
Attorney:Wigginton and Dorsey, for Appellants. Alex. Deering, for Respondent.
Judge Panel:JUDGES: Temple, J., delivered the opinion of the Court, Rhodes, C. J., Crockett, J., and Wallace, J., concurring.
Case Date:January 01, 1871
Court:Supreme Court of California

Page 535

40 Cal. 535



PASCAL PRICE, et al., Respondent

No. 2,346

Supreme Court of California

January, 1871

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Appeal from the District Court of the Thirteenth District, County of Merced.

This is an action to compel defendants to execute to plaintiff a deed to certain real estate described in plaintiff's complaint, alleged to have been conveyed to defendants Pascal, and D. J. Price, by plaintiff, through mistake a portion of which was thereafter by them conveyed to defendant Summers, who, it is alleged, well knew at the time of said conveyance to him by said Pascal, and D. J. Price, and was fully informed in all the circumstances of said mistake.

Defendants demurred to plaintiff's complaint on the ground: That the complaint did not state facts sufficient to constitute a cause of action, and that the complaint was uncertain, ambiguous, and unintelligible in its statements of the alleged mistake, the ground of action.

The Court sustained the demurrer. Plaintiff declined to amend, and the Court dismissed the action--whereupon the plaintiff appealed from the order of the Court sustaining the demurrer, and the order dismissing the complaint.


Wigginton and Dorsey, for Appellants.

The demurrer specifies two grounds, both of which defendantsclaim to be fatal to the complaint.

First --That the amended complaint does not state facts sufficient to constitute a cause of action.

Second --That the same is ambiguous, unintelligible, and uncertain in its statement of the alleged mistake, the ground of action.

The Court erred in sustaining the demurrer, and the complaint is not assailable on either of the grounds of the demurrer.

As to the first point: Does the complaint state facts sufficient to constitute a cause of action?

The allegations of the complaint are that " on the sixth day of May, A. D. 1867, the plaintiff herein agreed to sell, and did sell, and by indenture of deed convey, unto Pascal Price and Daniel J. Price, now deceased, the following described real estate," (setting out the land by metes and bounds.) " That plaintiff did at the same time and in said same deed, convey by mistake to the parties aforesaid (Price and Price) the following described real estate, the same being east of and adjoining the real estate hereinbefore described, to wit"; here describing, by metes and bounds, the land conveyed by mistake.

The complaint then goes on to show how the mistake occurred: Thatit was a mistake made by the surveyor, the attorney of plaintiff, who undertook to survey the land. That the attorney of plaintiff, acting as surveyor, by a mistake included other lands in the description of the land given in the deed than the lands which were actually surveyed, sold, and intended to be conveyed. These allegations are positive and certain, and are sufficiently explicit to show that there was a mistake made by the surveyor, and that, as a consequence to that mistake, more land was described in the deed than was sold by plaintiff, or purchased by defendant, and more than was intended to be conveyed by either plaintiff or defendant.

The other allegations of the complaint showing that plaintiff tendered the money to defendant Price, which had been paid to plaintiff for the lands not purchased, bargained, or intended to be conveyed, and that neither of defendants had ever been in possession of said property are also explicitly stated, and we do not see how we could make them any plainer or more certain, or render them less ambiguous,...

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