Gale v. Wood

• Decision Date: 12 August 1952
• Court: California Court of Appeals Court of Appeals
• Parties: GALE v. WOOD et ux. Civ. 8077. Sac. 6212.

Page 67

247 P.2d 67

112 Cal.App.2d 650

GALE v. WOOD et ux.

Civ. 8077.

Sac. 6212.

District Court of Appeal, Third District, California.

Aug. 12, 1952.

Stanley J. Gale, in pro. per., Pease & Lally, Sacramento, for appellant.

Busick & Busick, Sacramento, for respondent.

VAN DYKE, Justice.

This is an appeal from a summary judgment entered on motion of the respondents who were the defendants in the action. The relief asked by appellant's complaint was the specific enforcement of what appellant alleged was an agreement for the sale to him by respondents of certain real property. His complaint averred that on June 5, 1950 respondents 'agreed to sell' to him the subject property by a written agreement in form and substance as follows:

'June 5, 1950.

'Mr. Stanley J. Gale

326 Ochsner Bldg.,

Sacramento, Calif.

'Dear Sir:

'In consideration of sum of $50.00 to us paid in hand, we hereby agree to sell you home owned by us located at no. 4332 Tee Street, sacramento, for total price of $14,500.00 on following terms and conditions.

'(1) Sum of 12,000.00 (less deposit) to us in cash and balance $2500.00 to be evidenced by 2nd trust deed in amount of $2500.00 (behind a first of $9500.00 due in one year from date of making with interest at 5%.

'(2) Home to be delivered to you free and clear of any incumbrances. We will furnish deed and title policy.

'(3) Taxes, water, insurance ect., to be pro-rated as of date of closing.

'(4) If I cannot furnish clear title, I will refund your deposit.

'To be closed

by July 1st 1950

'Yours very truly,

/s/ Alfred Wood

/s/ Esther Wood

5331 25th Street

Sacramento, Calif.

HI 5 0591

'Accepted:

/s/ Stanley J. Gale'

It was further alleged that 'pursuant to said agreement (Exhibit 'A'), plaintiff paid to defendant, the sum of $50.00.' To these allegations respondents made answer as follows: They denied generally the allegations they had agreed to sell the subject property and in connection with their denial they alleged that the written document, execution of which by all parties they did not deny, constituted an offer to sell the subject property to appellant; they admitted the receipt of the $50, but affirmatively alleged that it was paid to them 'in consideration of Defendants' maintaining and keeping open said offer until July 1, 1950.' They further affirmatively alleged that after June 5, 1950, the date of the instrument, they placed in escrow as directed by appellant 'a Grant Deed to said real property with instructions to deliver the same to Plaintiff upon the receipt of $12,000.00 and a Note and Deed of Trust for $2,500.00 as provided in said offer to sell' and that thereafter appellant notified respondents that he could not obtain the necessary funds and that they could withdraw their deed from escrow, which respondents alleged they did. We think it unnecessary to go further into the contents of the complaint and answer except to say that there were allegations in the complaint usually found in specific performance actions which were by the answer substantially denied.

The parties proceeded to trial and after some evidence had been taken appellant asked leave to amend his complaint, which leave was granted and further proceedings were ordered continued. A lengthy amendment to the complaint was then filed, which, however, did not affect those portions of the complaint and answer hereinbefore set out, but did seek to allege facts upon which to base an estoppel of respondents to claim that by failing to complete his end of the bargain within the closing time set by the written document appellant had suffered the loss of his rights to compel a conveyance. From the record before us it appears that no answer was filed to these amendments. Service and filing thereof had been completed December 19, 1950, and without answer thereto, and on December 26th following respondents noticed a motion for summary judgment upon the grounds: 1. That the complaint as amended affirmatively showed that the 'offer or option pleaded' was not accepted within the time limited by its terms and that therefore the right to purchase ceased by the mere passing of time; 2. That the rule of equitable estoppel was not applicable to such a situation; 3. That the complaint as amended affirmatively showed the written instrument lacked 'the mutuality which is required to state a cause of action for a specific performance'; 4. That if the said instrument be construed as an executory contract its provisions were 'so indefinite, ambiguous and uncertain as to make said document not a proper document upon which to base the drastic equitable remedy of Specific Performance.' The motion was supported by affidavit of respondent Esther Wood and opposed by affidavit of appellant. Thereafter the motion was granted and the summary judgment appealed from was entered, the court therein stating that it had 'concluded as a matter of law, that the contract and offer of sale pleaded by plaintiff and marked Plaintiff's Exhibit 'A' upon which this action is predicated, was an option to sell, and that time was of the essence of said option, and that said option was not accepted by plaintiff within the time limited by the terms of said option, and that plaintiff's right to purchase ceased by the passing of that time.' The court declared further that the rule of equitable estoppel was not applicable to such an option situation and that since there was no triable issue of fact and plaintiff's action had no merit the action should be dismissed.

Section 437c of the Code of Civil Procedure providing for summary proceedings, where a claim is made that an action is unmeritorious, provides, so far as applicable here, that 'when an answer is filed in an action * * * for specific performance of a contract in writing for the sale or purchase of property, * * * if it is claimed * * * that the action has no merit, on motion * * * supported by affidavit * * * the complaint may be dismissed and judgment may be entered, * * * unless the other party, by affidavit * * * shall show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.' If an issue of fact is presented the summary judgment cannot be granted and the court must permit trial of the issue. 7 Cal.Jur. 10-Year Supp. 277. In passing on such a motion the primary duty of the trial court is to decide whether there is an issue of fact to be tried. Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62. Issue finding rather than issue determination is the pivot on which the summary judgment turns. Id. It follows as a corollary and from the express language of the section that an answer is a prerequisite to the motion for summary judgment. Loveland v. City of Oakland, 69 Cal.App.2d 399, 402, 159 P.2d 70. Obviously the court cannot tell what the issues are in any case until the answer comes in. (As hereinbefore noted, the allegations of the amendment to the complaint whereby appellant sought to set up an estoppel on the part of respondents to claim that the time limits of the option, if the pleaded document be construed to be an option, had not been extended, were unanswered when the motion was made and passed upon. The record, therefore, was not in the situation required by the statute. However, we prefer not to place our decision upon this ground as there are more cogent reasons why the judgment appealed from must be reversed.) Said the court in Walsh v. Walsh, supra [18 Cal.2d 439, 441, 116 P.2d 64]: The universal practice is 'to permit this expedited procedure only where it is perfectly plain that there is no substantial issue to be tried.' In considering affidavits pro and con when such a motion has been made, those of the moving party are to be strictly construed, those of the party opposing the motion are to be liberally construed, Gibson v. De La Salle Institute, 66 Cal.App.2d 609, 618, 152 P.2d 774, and if there be conflict the affidavits of the opposing party must be accepted as true. Id. Applying these rules to the pleadings as hereinbefore referred to we find that whereas appellant characterized the document which the parties signed as one whereunder respondents had agreed upon the terms and conditions therein stated to...