San Francisco Hotel Co. v. Baior

Decision Date16 February 1961
Citation11 Cal.Rptr. 32,189 Cal.App.2d 206
CourtCalifornia Court of Appeals Court of Appeals
PartiesSAN FRANCISCO HOTEL COMPANY, a California corporation, Plaintiff and Appellant, v. Betty H. BAIOR, Defendant and Respondent. Civ. 6323.

Kelso, Schnacke, Cotton & Holmes, San Francisco, for appellant.

Swarner, Fitzgerald & Dougherty, and H. M. Dougherty, E. L. Mackey, Riverside, and Harold D. Geffen, Beverly Hills, for respondent.

COUGHLIN, Justice.

This is an appeal from a judgment of nonsuit in an action seeking specific performance of an agreement to sell real property.

The issues on appeal concern an alleged lack of mutuality of remedy; alleged uncertainty in the agreement with respect to time of payment and identity of the purchaser; alleged failure to perform within the time prescribed; and alleged nondelivery of the agreement.

'The granting of a motion for nonsuit is warranted '* * * when, and only when, disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.'' Raber v. Tumin, 36 Cal.2d 654, 656, 226 P.2d 574, 575.

The facts for consideration on this appeal will be set forth in accord with the foregoing rule.

The action is based upon a writing dated October 3, 1956, and entitled 'Deposit Receipt', which acknowledges receipt of $1,000 from Fred Whitman or nominee as a deposit on account of the purchase price of a half section of real property for $80,000 cash, and provides for a 30-day escrow. The receipt is signed: 'Jorgensen Realty, Broker, by E. M. Jorgensen'. Mr. Jorgensen was a real estate agent employed by Mr. Whitman to make an offer to purchase the property in question on the terms stated. This authority was not expressed in writing. The deposit receipt also contains an offer to purchase the property upon the terms stated therein, which is signed: 'Fred Whitman or nominee by EMJ Agent'; and an agreement to sell upon the conditions stated therein which is signed by defendant Baior, the respondent herein. The defendant had employed a real estate agent by the name of Sougey to obtain a purchaser of the property. Execution of the aforesaid deposit receipt followed negotiations between Jorgensen and Sougey.

The $1,000 referred to in the receipt was evidenced by a check for that amount issued by Jorgensen at the request of Whitman. The check was attached to the receipt; both were presented to the defendant by Sougey; the defendant signed the receipt; and delivered both instruments to Sougey.

On October 8th the two real estate agents initiated an escrow in a local bank which, in accordance with instructions from Whitman, requested that title be vested in 'Dante P. Lembi, or nominee'. Lembi was an associate of Whitman and secretary-treasurer of the plaintiff corporation. At this time a check from Whitman for $1,000 was substituted for that advanced by Jorgensen and was deposited with the escrow holder. A copy of these instructions were forwarded to the defendant who contacted Sougey; inquired as to the identity of Lembi; was told that he was an associate of Whitman, who also was connected with many corporations, one of which was the San Francisco Hotel Company, the plaintiff herein; but the instructions were not signed or returned.

Under date of October 15, 1956, the plaintiff obtained a title search to the subject property from a local title company; thereafter passed a resolution to purchase the property; under date of October 29th signed escrow instructions directed to this title company respecting the purchase of this property in which it, the plaintiff, was named as vestee of the title; deposited $79,000 with this escrow holder; and advised the former escrow holder, the bank, to deliver to the title company the $1,000 theretofore deposited with it. The escrow instructions to the title company were signed by Lembi as secretary-treasurer of the plaintiff corporation, and the $79,000 check accompanying these instructions was signed by Whitman as president of that company and by Lembi as secretary-treasurer.

On November 16th instructions upon the form used by the title company were signed by Whitman as president and by Lembi as secretary-treasurer of the plaintiff corporation.

Under date of November 20th Whitman executed a written assignment of the agreement to the plaintiff corporation in which he set forth a copy of that agreement. This assignment was recorded on November 26th.

On December 7th the defendant caused the preparation of instructions by a third escrow holder which deirected the vesting of title in the plaintiff to the property in question, less approximately 10 acres, upon receipt of the contract price, i. e., $80,000.

On February 25, 1957 the plaintiff filed the complaint herein seeking specific performance of the agreement in question. The defendant answered and cross-complained. The matter went to trial and at the close of plaintiff's case the court granted defendant's motion for nonsuit. From the judgment entered thereon the plaintiff takes this appeal.

In support of the judgment the defendant contends that the agreement was not enforceable against the plaintiff's assignor, Mr. Whitman, because his agent, Jorgensen was not authorized in writing to sign the same on his behalf and, therefore specific performance should not be decreed because of a lack of mutuality of remedies. With respect to this contention it is conceded that the applicable rule is that set forth in Section 3388 of the Civil Code which provides:

'A party who has signed a written contract may be compelled specifically to perform it, though the other party has not signed it, if the latter has performed, or offers to perform it on his part, and the case is otherwise proper for enforcing specific performance.'

If Jorgensen had no authority to bind Whitman, the contract was the same as though Whitman had not signed. Applying the foregoing code rule it has been held that mutuality of remedy exists, even though one of the parties to a contract has not signed the same, if the other party has substantially performed (Jones v. Clark, 19 Cal.2d 156, 161, 119 P.2d 731; Thurber v. Meves, 119 Cal. 35, 38, 50 P. 1063, 51 P. 536; Van Fossen v. Yager, 65 Cal.App.2d 591, 596, 151 P.2d 14), has pertially performed (Copple v. Aigeltinger, 167 Cal. 706, 709, 140 P. 1073; Boehle V. Benson, 150 Cal.App.2d 696, 701, 310 P.2d 650; Gibbs v. Mendoza, 103 Cal.App. 183, 186, 284 P. 250), has offered to perform (Bird v. Potter, 146 Cal. 286, 287, 79 P. 970; Sayward v. Houghton, 119 Cal. 545, 548, 51 P. 853, 52 P. 44; Vassault v. Edwards, 43 Cal. 458, 464), or has brought an action to compel performance. King v. Stanley, 32 Cal.2d 584, 592, 197 P.2d 321; Copple v. Aigeltinger, supra, 167 Cal. 706, 710, 140 P. 1073; Harper v. Goldschmidt, 156 Cal. 245, 250, 104 P. 451, 28 L.R.A.,N.S., 689. However, the rule has no application where one of the parties signing the contract has withdrawn therefrom before tender of performance or commencement of suit by the party who did not sign. Nason v. Lingle, 143 Cal. 363, 367, 77 P. 71; Seymour v. Shaeffer, 82 Cal.App.2d 823, 825-826, 187 P.2d 95; Jonas v. Leland, 77 Cal.App.2d 770, 777, 176 P.2d 764. The defendant contends that she withdrew from the agreement in question before the offer to perform was made on October 29th. The resultant issue requires a determination whether "no other reasonable conclusion is legally deducible from the evidence." Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768, 769.

After signing the deposit receipt and agreeing to sell her property, the defendant expressed a desire to retain 10 or 20 acres thereof and asked her agent to endeavor to get this concession from the buyer, but she did not want her desires in the matter to defeat the sale agreed upon; this request was relayed to Jorgensen who, in turn, advised Whitman thereof; Whitman replied that he did not want to change the deal but after he had time to survey the property he would talk about selling some of it back. During the course of the foregoing and subsequent conversations on the subject between Sougey and Jorgensen, it was made clear that the sale was not contingent upon the retention of any acreage by the defendant Baior. As time passed the defendant became more insistent with respect to her request, and by letter to her agent under date of October 22nd stated that she was 'withholding the escrow instructions until you straighten up this matter.' Thereupon Sougey urged Jorgensen to persuade his client to permit Baior to retain the desired acreage. At no time was Jorgensen or Whitman advised that Baior withdrew her promise to sell or intended to withdraw unless she could retain the requested acreage. Thereafter Jorgensen had further communications with...

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16 cases
  • Hastings v. Matlock
    • United States
    • California Court of Appeals Court of Appeals
    • August 28, 1985
    ...time, and "this implied time element does not render the contract uncertain or unenforceable." (San Francisco Hotel Co. v. Baior (1961) 189 Cal.App.2d 206, 213, 11 Cal.Rptr. 32; Greenstone v. Claretian Theo. Seminary (1959) 173 Cal.App.2d 21, 32, 343 P.2d 161; Civ.Code § 1657.) Since the 45......
  • Magna Development Co. v. Reed
    • United States
    • California Court of Appeals Court of Appeals
    • June 26, 1964
    ...60 A.C. 155, 32 Cal.Rptr. 415, 384 P.2d 7; 4 McKinley v. Lagae, 207 Cal.App.2d 284, 24 Cal.Rptr. 454; San Francisco Hotel Co. v. Baior, 189 Cal.App.2d 206, 11 Cal.Rptr. 32; Wise v. Reeve Electronics, Inc., 183 Cal.App.2d 4, 6 Cal.Rptr. 587; and Yucca Water Co. v. Anderson, 177 Cal.App.2d 25......
  • Golder v. Crain
    • United States
    • Arizona Court of Appeals
    • February 27, 1968
    ...nominate anyone, even an impecunious person, to perform. Handy sees nothing wrong with the decision of San Francisco Hotel Co. v. Baior, 189 Cal.App.2d 206, 11 Cal.Rptr. 32 (1961), in which a contract of sale was specifically enforced in favor of a buyer designated as 'Fred Whitman or nomin......
  • Jackson v. Grant, 87-2801
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 31, 1989
    ...the parties to the contract exist, but that it is possible to identify them. Cal.Civ.Code Sec. 1558. See San Francisco Hotel Co. v. Baior, 189 Cal.App.2d 206, 11 Cal.Rptr. 32, 36 (1961) (names of seller and buyer are essential factors in considering whether contract is sufficiently certain ......
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