Auslen v. Johnson
| Decision Date | 03 June 1953 |
| Citation | 257 P.2d 664,118 Cal.App.2d 319 |
| Court | California Court of Appeals Court of Appeals |
| Parties | AUSLEN v. JOHNSON et al. Civ. 8268. Sac. 6321. |
Milham & Baer, by Russell F. Milham, Placerville, for appellant.
Lewis & Lewis, by Clifford R. Lewis, Sacramento, for respondents.
This is an action for specific performance of an alleged contract to convey real property. One Armstrong, the assignor of appellant Auslen, had for several years been engaged in business with Elwood Chris Johnson, hereinafter called respondent, in the subdivision and sale of real property near Lake Tahoe. On October 1, 1949, their association was terminated and respondent agreed with Armstrong that with regard to certain real property which respondent still owned he would give to Armstrong what was called 'a right of first refusal'. On August 1, 1950, respondent wrote Armstrong, saying he had received an offer for some of the real property involved in his agreement with Armstrong and as a result of a discussion which thereafter occurred respondent gave to Armstrong a written option for thirty days to purchase certain described property. He received $250 in consideration of this option. The thirty days elapsed and on December 14, 1950, Armstrong paid Johnson an additional sum of $300 and obtained a written 'extension' of the original option agreement for a period stated as lasting until a preliminary title report which Armstrong had already ordered should be completed by a title company. On December 19th a third sum of $200 was given to Johnson by Armstrong. The preliminary title report was received by Armstrong December 22, 1950, but he did not then exercise his option. However, on December 30th Armstrong paid a further sum of $200 to respondent who then orally agreed with Johnson to 'extend' the option to February 1, 1951. On January 26th Armstrong paid respondent a further sum of $100. Concerning this last sum respondent testified that he gave no extension on the option beyond the date of February 1st and Armstrong testified that the option was for that consideration extended for a reasonable period of time. On March 15th following Armstrong advised respondent he would be unable to exercise the option and offered to release respondent from the agreement giving him a 'right of first refusal' for the sum of $10,000. On April 2, 1951, Armstrong assigned his rights under the option agreement to appellant and appellant deposited with the title company who had made the preliminary report a sum more than sufficient to meet the purchase price named in the option agreement. Appellant demanded conveyance and upon it being refused brought this action. There is conflict in the testimony concerning the foregoing, but under the settled rule we must disregard it.
The trial court found that the option had been extended to February 1st, as above recited, and that during that period and on January 26th for the sum of $100 the time was further extended for a period of thirty days; that it expired on February 26th, prior to the date of the assignment from Armstrong to appellant and that the option had not been exercised during its life. While the complaint did not contain an allegation that the consideration was adequate, fair and reasonable, leave was given appellant during the trial to amend his complaint in that regard and testimony was received upon the issue. The amendment was not filed, but in that connection the court found that the consideration was neither fair, reasonable nor adequate. The court concluded from all the findings that appellant should take nothing and, accordingly, gave judgment in favor of respondent, from which judgment appellant appeals.
Although appellant has made a number of specific contentions in his briefs they really add up to a contention that the evidence is insufficient to support the trial court's findings. Additionally, appellant claims that there were errors committed in the rulings upon testimony, which errors were prejudicial to him.
The contention that the evidence is insufficient cannot be sustained. It is undisputed that the original...
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...to the general rule, which requires that the court's findings be liberally construed in favor of the judgment (Auslen v. Johnson (1953) 118 Cal.App.2d 319, 257 P.2d 664), in this case we may also resort to implied findings to uphold the judgment. (In re Marriage of Dawley (1976) 17 Cal.3d 3......
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