Hoen v. Simmons

• Decision Date: 01 June 1850
• Citation: 1 Cal. 119
• Parties: HOEN v. SIMMONS, ET AL.
• Court: California Supreme Court

1 Cal. 119

HOEN v. SIMMONS, ET AL.

Supreme Court of the State of California

June Term, 1850

June 1, 1850

APPEAL from the Court of First Instance of the District of San Francisco.

The action was brought to recover possession of a lot of land in the City of San Francisco. The plaintiff had made a verbal contract with the defendants to sell to them the premises in controversy for the sum of five thousand dollars, of which one thousand dollars was to be paid down, and the balance in two months, with interest at the rate of two per cent. a month. It was understood by the parties that the contract was to be reduced to writing, and signed by them; papers were accordingly drawn up by the defendants' attorney, but before they were signed the plaintiff left the State for Oregon, and they never were signed. After the plaintiff had departed for Oregon, the defendants, in good faith, and relying on the execution of the contract by the plaintiff, took possession of the lot, and erected a building thereon. They took possession, however, without the direction, consent, or knowledge of the plaintiff. The latter, on his return to San Francisco, refused to perform his contract, and instituted this suit to recover possession. The defendants, thereupon, filed a cross bill to compel a specific performance. Before filing their bill, they tendered to the plaintiff the sum of one thousand dollars, with interest thereon from the time of entering into the verbal contract, but they did not pay, or offer to pay the balance of four thousand dollars, although the time had elapsed within which, according to the terms of the verbal contract, they were to pay it. The Court of First Instance ordered a specific performance, and entered judgment to that effect, from which the plaintiff appeals.

George Hyde, for Plaintiff.

Frederick Billings, for Defendants.

By the Court, BENNETT, J. Action by plaintiff to recover possession, and cross suit by defendants for specific performance.

It is clear that the plaintiff is entitled to recover possession of the lot in question, unless the defendants have a right to compel him to convey it to them. The counsel for the defendants made a point, that, inasmuch as the plaintiff had proved no title in himself, the defendants, being in possession, could not be ousted. This is very good law when applied to a proper state of facts, but has no application in this case. The defendants, having entered into possession, claiming under the plaintiff and in subordination to his title, are estopped from questioning it. Their position is similar to that of a tenant, who cannot gainsay or deny the title of his landlord, without having first restored the possession. The plaintiff must, therefore, recover, unless the defendants show a right to a specific performance, upon the principles adopted by Courts of Equity.

The affirmative of this latter position can be sustained only upon the ground, that there was a subsisting contract in writing reciprocally binding upon the parties; or that there was a verbal agreement, and part performance of it by the defendants under such circumstances, that it would be a fraud on the part of the plaintiff if he were not compelled to convey.

There was no contract in writing. A paper was drawn up which might have acquired the force of a written contract, had it been signed and delivered; but without signature or delivery, it is of no account. It was inchoate and incomplete, and neither party was bound by it.

The contract, therefore, if there was one, was merely verbal, and there is no part performance within the equitable rules which govern decisions in such cases.

A party, asking the interposition of the equitable power of the Court in enforcing a verbal...