Gould v. Callan

• Decision Date: 03 August 1954
• Court: California Court of Appeals Court of Appeals
• Parties: GOULD v. CALLAN. Civ. 20085.

Page 93

273 P.2d 93

127 Cal.App.2d 1

GOULD v. CALLAN.

Civ. 20085.

District Court of Appeal, Second District, Division 3, California.

Aug. 3, 1954.

Hearing Denied Sept. 30, 1954.

Gitelson, Ashton, Moore & Coyle, and Edward B. Olsen, Los Angeles, for appellant.

Gwyn S. Redwine, Hollywood, for respondent.

VALLEE, Justice.

Plaintiff appeals from a judgment denying him a decree of specific performance of a written contract for the conveyance of real property. The trial court held that the contract, evidenced by escrow instructions, is too uncertain and indefinite to constitute an enforceable or binding agreement.

The contract was entered into on June 16, 1952. Plaintiff was the purported buyer; defendant Callan the purported seller. The property consisted of four lots in Los Angeles on which were a market, a parking lot, and a billboard. The purchase price was $65,000. No cash deposit was required or made. The price was to be paid as follows: (1) $20,000 in cash, the proceeds of a loan to be obtained by defendant, payable $212.13 a month including 5% interest, all due in 10 years, secured by a deed of trust, a first lien on the property; and (2) a promissory note in the principal sum of $45,000 to be executed by plaintiff in favor of defendant, payable $200 or more a month including 5% interest, commencing September 1, 1952, and continuing until September 1, 1962, at which time the monthly payments would increase to $300 or more a month including 5% interest and continuing until September 1, 1972, at which time the total unpaid balance of principal and interest would become due and payable, secured by a deed of trust, a second lien on the property.

The contract contained the following provision: 'The 2nd Trust Deed mentioned on page 1 hereof to provide for subordination on following basis: In the event the trustor [plaintiff] should erect a building on subject property at a total building cost of not less than $75,000.00 or more than $300,000.00, then Beneficiary agrees to subordinate said Trust Deed to the lien of a first trust deed not to exceed 60% of the true building cost. In the event of such subordination then the payments on said Second Trust Deed loan to be $400.00 or more per month, including 5% interest.' It also provided that the escrow instructions were to be complied with by August 16th.

Prior to August 16th, defendant cancelled the escrow instructions. Thereafter plaintiff brought this suit for specific performance of the contract.

The court found the terms of the contract and that the contract is too uncertain and indefinite to constitute an enforceable or binding agreement since there is no provision made in the agreement as to the amount of interest which the obligation secured by the first deed of trust shall bear, nor is there any provision made as to the terms of the payment of the obligation to be secured by said first deed of trust. Judgment was for defendant. Plaintiff appeals.

The part of the contract which the court found is uncertain and indefinite is that provision which provides for the subordination of the second deed of trust to a lien of a first deed of trust to be executed in the event plaintiff should decide to construct a building on the property.

Plaintiff says the finding that the contract is too indefinite and uncertain to constitute an enforceable or binding agreement is not a finding of an ultimate fact but a conclusion of law, and that no facts are found from which it follows that the contract is indefinite and uncertain. Assuming a mere finding that a contract is indefinite and uncertain is a conclusion of law, plaintiff is in error. The contract is made a part of the findings and, as we have stated, the court found the ultimate facts that make it indefinite and uncertain. Further, as a conclusion of law, the court stated that the contract is too indefinite and uncertain to constitute an enforceable or binding agreement.

Section 3390, subdivision 6, of the Civil Code includes among the obligations which cannot be specifically enforced, 'an agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable.' 'A contract to be binding must be definite and certain. Goehring v. Stockton Morris Plan Co., 93 Cal.App.2d 417, 420-421, 209 P.2d 41. A contract will not be enforced unless it is complete and certain. Blake v. Mosher, 11 Cal.App.2d 532, 535-536, 54 P.2d 492. Where a party seeks specific performance of a contract, the terms of the contract must be certain and definite in all particulars essential to its enforcement. A court must be able to say what is the stipulated performance. Moore v. White, 98 Cal.App.2d 510, 513, 220 P.2d 918.' Colorado Corp., Ltd. v. Smith, 121...