Kessler v. Sapp
| Decision Date | 23 April 1959 |
| Citation | 169 Cal.App.2d 818,338 P.2d 34 |
| Parties | Jerrold J. KESSLER, Jr. and Don S. Levin, Plaintiffs, v. Maxwell SAPP, David M. Sapp et al., Defendants. Jerrold J. KESSLER, Jr. and Don S. Levin, Respondents and Appellants, v. Maxwell SAPP, David M. Sapp and Sapp Bros. Construction Co., a partnership, Appellants and Respondents. Civ. 23529. |
| Court | California Court of Appeals Court of Appeals |
Horowitz & Howard by Alvin F. Howard, Los Angeles, for plaintiffs, respondents and appellants.
Theodore J. Elias and Harold Easton by T. J. Elias, Los Angeles, for defendants, appellants and respondents.
Plaintiffs agreed in writing to purchase from defendants a parcel of unimproved property for subdivision purposes. Upon the latters' refusal to convey the property, plaintiffs brought an action for specific perormance. Defendants filed a cross-complaint for declaratory relief and to quiet title. At the trial, defendants objected to the introduction of any evidence upon the ground that the complaint did not state a cause of action for specific performance; their objection was sustained by the court and plaintiffs were allowed to file an amended complaint in which they sought damages for breach of contract. When the matter again came on for trial, defendants moved to exclude evidence upon the ground that the written agreement was too uncertain to give rise to a cause of action for damages for breach of contract. Defendants' motion was granted and judgment was entered in their favor. Plaintiffs then made a motion for new trial, which was granted by the court. Defendants appeal from the order granting plaintiffs a new trial and plaintiffs appeal from the judgment.
It is now settled that a new trial may be had because of error in entering judgment adverse to the plaintiffs upon the sustaining of a demurrer without leave to amend. Code Civ.Proc., sec. 657, subd. 7; Carney v. Simmonds, 49 Cal.2d 84, 315 P.2d 305. Since defendants' motion to exclude evidence was tantamount to a general demurrer, our question on their appeal from the new trial order is whether, under the facts pleaded, the amended complaint states the substance of a cause of action on any theory. Byson v. City of Los Angeles, 149 Cal.App.2d 469, 472, 308 P.2d 765, and cases cited.
The contract, which was set out in the complaint and the amended complaint, consisted of written escrow instructions dated January 20, 1956, as supplemented by a letter agreement of January 24th and an amendment to the escrow instructions dated April 4th. The original instructions contemplated a sale of the property to plaintiffs for $115,000. The escrow was to close April 5, 1956. Plaintiffs were to deposit $50,000 in installments of $2,000, $10,000 and $38,000 and a trust deed securing their promissory note for $65,000, payable 18 months after the date of the note. By a special provision, which we have set out in the margin, the parties agreed to subordinate the deed of trust to a first trust deed securing a construction loan to be obtained by plaintiffs. 1
We have likewise set out in the margin the letter agreement dated January 24th. 2 It provided in substance that the costs of the subdivision in excess of $15,000 were to be deducted from the $50,000 to be paid to defendants through the escrow; that plaintiffs were to furnish defendants with bids for the subdivision and improvement work from three reputable contractors; and that an additional sum equal to 10% to plaintiffs' expenditures for the subdivision and improvement work would be allowed as an item of subdivision costs as the value of their personal services.
The amendment to the escrow instructions extended the escrow until July 5th. Plaintiffs were to deposit $8,000 in addition to the $12,000 already in the escrow and they agreed to the immediate release to defendants of $17,500, the balance of $2,500 to be released to defendants' real estate brokers as payment of one-half of their commission on the sale.
The amended complaint alleged the execution of the above-mentioned instruments and incorporated them by reference. Plaintiffs alleged that they performed all the conditions of the agreement to be performed by them, that they demanded a deed to the property and that defendants refused to make the conveyance. It was alleged in the amended complaint that plaintiffs released the $20,000 to defendants and their agents; expended the sum of $4,000 for the services of engineers and lawyers in the preparation of a subdivision plan; obtained the authorities' tentative approval of a subdivision plan and tract map; furnished defendants with a copy of the proposed tract map, and deposited in escrow three bids from reputable contractors showing that the cost of the subdivision and improvement work would be $56,856. Plaintiffs alleged that the reasonable value of their personal services in connection with the subdivision was $5,168. The prayer seeks recovery of the $20,000 released from the escrow, the $4,000 expended by plaintiffs, $5,168 as the value of their services, and substantial damages on account of defendants' failure to convey the property.
The answer denied the material allegations of the amended complaint. Defendants alleged as affirmative defenses to the action that they received no consideration for the alleged contract, that plaintiffs failed to perform any of the conditions of the agreement other than the payment of the $20,000, and that their own assent thereto was procured through mistake and through the representations of the real estate broker (who was the agent for both parties in the transaction) that the subdivision costs would not substantially exceed $15,000, although plaintiffs and the broker knew that the costs would be substantially in excess of $15,000. By way of cross-complaint, complaint, defendants sought upon the same grounds as set forth in their answer to quiet title to the property and to obtain a declaration of the nullity of the agreement.
As we have said, the court ruled that the amended complaint did not state a cause of action for damages for the reason that the contract pleaded therein was too uncertain to be binding. This construction was a correct one and it is not disputed by the parties on the appeal. The escrow instructions of January 20th provided for the subordination of the trust deed to a first trust deed to be obtained by the purchasers; only one term of the contemplated deed of trust was set out in the instructions, namely, that the amount of the encumbrance was not to exceed $6.50 per square foot 'exclusive of garages, stairways and porches' (evidently relating to buildings to be constructed); the rate of interest, the amount of the monthly payments and the period of the debt were left to the future agreement of the parties. This radical uncertainty as to a material feature of the sales agreement not only rendered it incapable of specific enforcement (Gould v. Callan, 127 Cal.App.2d 1, 273 P.2d 93), but also rendered...
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