Burgess v. Rodom
| Decision Date | 04 November 1953 |
| Citation | 121 Cal.App.2d 71,262 P.2d 335 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BURGESS v. RODOM et al. Civ. 19412. |
Elizabeth H. McCarthy, Los Angeles, for appellant.
Arden T. Jensen, Salvany, for respondent.
Plaintiff seeks to recover damages for breach of contract to purchase real property. The demurrer of the defendant-vendee, Jane E. Rodom, to plaintiff's second amended complaint was sustained. Plaintiff declined to amend further. Judgment was accordingly entered that plaintiff take nothing. It is from this judgment that plaintiff appeals.
The agreement upon which the seller predicates his right of action acknowledges receipt of $200 as a deposit on the purchase price of the property and provides that 'The balance of the purchase price [$5,000.] is to be paid within 30 days from date hereof, as follows, to-wit: Terms to be made as soon as new purchaser arranges for new mortgage now held by Santa Ynez Valley Bank to Burgess (the seller).' The italicized portion of the agreement was inserted by handwriting in the blanks in a 'deposit receipt' (California Real Estate Association Standard Form), which was signed by the plaintiff and defendant Jane E. Rodom but not signed by her husband, George.
Respondent contends that the agreement is lacking in essential elements and is fatally uncertain. Hence no cause of action is stated. Her position is well founded.
An action for damages for breach of contract for the purchase or sale of real property will not lie unless the writing contains the essential terms and material elements of such an agreement without recourse to parol evidence of the intention of the contracting parties. Salomon v. Cooper, 98 Cal.App.2d 521, 522-523, 220 P.2d 774; Dillingham v. Dahlgren, 52 Cal.App. 322, 326-327, 198 P. 832. The law does not provide a remedy for breach of an agreement to agree in the future, and the court may not speculate upon what the parties will agree. Autry v. Republic Productions, Inc., 30 Cal.2d 144, 151, 152, 180 P.2d 888; Vangel v. Vangel, 116 Cal.App.2d 615, 631, 254 P.2d 919. Hence, as pointed out in Salomon v. Cooper, supra, 98 Cal.App.2d page 523, 220 P.2d page 775:
Applying these principles, it is clear that the deposit receipt is incomplete in one essential feature, viz., the terms upon which the balance of the purchase price is to be paid. The deposit of $200 represents only approximately four percent of the purchase price. It appears to have been contemplated that the remaining 96 percent would be partially financed through a new mortgage at the bank and some other arrangements made for paying or securing the balance. Hence, the handwritten insertion of the provision: 'Terms to be made a soon as new purchaser arranges for new mortgage now held' by the bank. How this balance would be paid, whether in monthly, quarterly, semi-annual or annual installments, or at the end of a specified term of years does not appear. Likewise, absent is the rate of interest. The security, if any, to be provided for this balance, whatever it might be, is not specified. These are all important items, yet agreement with respect to each of them was 'left open for future settlement.' It is therefore established from the language which the parties painstakingly wrote into the blank space in the deposit receipt that their minds had not met upon these...
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