Tibbets v. Robb

• Decision Date: 12 March 1958
• Citation: 158 Cal.App.2d 330,322 P.2d 585
• Court: California Court of Appeals Court of Appeals
• Parties: George E. TIBBETS and Velda Tibbets, Plaintiffs and Respondents, v. Dawson E. ROBB and Flora M. Robb, Defendants and Appellants. Civ. 22609.

Page 585

322 P.2d 585

158 Cal.App.2d 330

George E. TIBBETS and Velda Tibbets, Plaintiffs and Respondents, v. Dawson E. ROBB and Flora M. Robb, Defendants and Appellants.

Civ. 22609.

District Court of Appeal, Second District, Division 2, California.

March 12, 1958.

Charles W. Engelbertson, Santa Barbara, for appellants.

Durley, Todd & Cearnal, by W. Mark Durley and Dale Cearnal, Oxnard, for respondents.

ASHBURN, Acting Presiding Justice.

Defendants appeal from a judgment terminating their rights under a contract for purchase from plaintiffs of certain real property. The complaint and the judgment are in the form of quiet title. The major question on appeal is whether defendants were required to make an installment payment on June 1, 1956, and whether they were in default in failing to perform. This question involves numerous subsidiary ones which turn largely upon the resolution of an ambiguity in the contract and the manner of its disposition in the findings and judgment.

On February 17, 1956, the Tibbets, designated as 'sellers,' agreed to sell, and the Robbs, as 'buyers,' agreed to purchase, certain real property in the city of Oxnard. The written agreement provided that sellers should erect at their own cost a certain building upon the land according to plans and specifications therein approved by all parties; that erection of same should begin within ten days and be completed within a reasonable time. The sale price of the land and improvement to be erected thereon was stated to be 'a sum equal to Eleven Thousand Two Hundred Fifty Dollars ($11,250.00) plus the actual cost of the building to be erected thereon * * *. When the total cost of the building has been ascertained an amendment to this lease shall be executed, setting out the full cost of such building.' As a down payment buyers were to assign to sellers a certain contract of January 13, 1955, executed by Joe and Alma Faye Buckingham in favor of F. M. Engelbergstron, upon which the unpaid balance then was $1,984.29. This assignment was duly executed. The balance of the purchase price was payable in installments at the rate of one per cent of the full purchase price per month. The governing paragraph reads: 'The said buyers do hereby agree to pay the purchase price of and for said real property together with the improvements to be erected thereon at the rate of one percent (1%) per month or more on the entire cost of the lot and building (the lot, as heretofore stated, to be priced at $11,250.00), the first of which payments shall be made on the 1st day of June, 1956 and a like amount on the first day of each month thereafter until all of the purchase price and interest thereon have been fully paid. The payments so to be made shall include interest at the rate of six percent (6%) per annum, payable monthly, and said Buyers, and each of them, do hereby agree to pay interest on the said purchase price and the decreasing amounts thereof at the rate of six percent (6%) per annum, payable monthly and in the manner hereinbefore set forth.' The event of default by buyers is dealt with as follows: 'In the event of the failure on the part of the Buyers to comply with any of the terms or conditions hereof by said Buyers and said default shall be in existence for the period of thirty (30) days or more, the Sellers shall be released from all obligations in law or equity to convey said real property or to perform any other obligation imposed upon them by this agreement, and the Buyers shall forfeit all right thereto and to the property hereby agreed to be sold, and all right, title and interest in and to any monies paid under the terms hereof, such money to be considered in such case as compensation for the use of said property.' Also: '[A]nd provided also that the rights of the owner in and to any of the real property herein described, arising by reason of a reversion of the title to said lot or land occuring under a breach of these conditions and restrictions, shall not be exercised until, and no action shall be brought to enforce and/or establish such reversion unless, a notice of such breach, setting forth the facts of the breach, has been given to the owner of said land, and such breach has not been remedied within thirty (30) days after the giving of said notice.' Buyers were to have possession upon completion of the building and 'during such times as they may not be in default as to any of the terms or provisions of this agreement.'

The building was not completed by June 1, 1956, the date specified for payment of the first installment of purchase price, and no payment was made. Thereupon, on June 7, 1956, sellers gave buyers a written notice of non-payment of the installment of June 1, adding: 'The cost of the building has not yet been established, and, therefore, at this time, demand is made on you for the payment due June 1, 1956 based on the price of the lot reduced by the unpaid amount of the contract which was assigned to us pursuant to said Agreement, plus interest as provided for in the Agreement. We reserve the right to change, from time to time, the basis of the amount due from you monthly to include the cost of the building.' But the buyers made no payment whatever. On September 25, 1956, the sellers sued to quiet title, for restoration of possession, etc.

All parties recognize that, when applied to the following facts, the contract was ambiguous with respect to the time for beginning payments, i. e., the building was to be completed within a reasonable time, the first payment to be made on June 1, 1956, and to consist of one per cent of the lot value ($11,250) plus the actual cost of the building; the building was under construction until July 25, 1956, and the full cost not ascertained or ascertainable on or before June 1, 1956. Plaintiffs alleged the intent of the parties as follows: 'It was the true intent and meaning of the terms of said Agreement, and by its terms the said defendants agreed and undertook, that, regardless of whether or not said improvements to be constructed on said lot were finished on June 1, 1956, defendants were to pay on the first day of each month commencing June 1, 1956, an amount of money equal to one percent of the amount of $11,250.00 (the cost of the lot) plus the cost of the building, whether completed or uncompleted, as of the time of payment reduced by the unpaid amount of a contract dated January 13, 1955 executed by Joe and Alma Fay Buckingham, and in favor of F. M. Engelbergstron ($1,984.29).' Defendants' answer: 'Further answering, defendants allege it was the true intent and meaning of the terms of said agreement, and by its terms said defendants agreed and undertook that the said payments were to commence only when said improvements were completed. It was the true intent and meaning of the terms of said agreement that defendants were to commence said payments only when said improvements were completed, whether on June 1, 1956, or after June 1, 1956.' Oral and documentary evidence was taken at the trial and judgment rendered in favor of plaintiffs. The court found: '2. Under and pursuant to the terms of said Agreement defendants were obligated to make a payment on or before June 1, 1956, and said payment was not made. * * * 6. A notice of default setting forth the nonpayment of moneys due on or before June 1, 1956 was given as required by said Agreement from plaintiffs to defendants and this action was not commenced until thirty days after the giving of said notice. 7. Defendants' default, as set forth above, continued for a period of thirty days. 8. Plaintiffs performed all of their obligations under said Agreement until they were excused from performance after defendants' default had been in existence for a period of thirty days. * * * 13. The work of constructing the building done by plaintiffs pursuant to the Agreement proceeded with reasonable diligence except during times that delays were caused by the wrongful interference of defendants.'

Appellants undertake to argue the sufficiency of the evidence to support the findings, particularly those which are to the effect that the failure to complete the building was due to their unjustified interference with the work and that their payment was due on June 1 regardless of noncompletion of the structure. These arguments cannot be entertained for this appeal must be treated as one upon the judgment roll.

Respondents moved to dismiss the appeal and appellants made a counter motion to be relieved from default wherein they requested 'that they may be permitted to appeal only on the clerk's transcript under Rule 5(f).' The motion to dismiss was denied on September 12, 1957, 'with leave to appellants to proceed upon the judgment roll alone and upon condition that they do so.' Nevertheless, appellants filed on September 26, 1957 a partial reporter's transcript and caused to be included in the clerk's transcript, filed on the same day, two exhibits which apparently had been received in evidence. This court's order of September 12th precluded either of these maneuvers and they must be disregarded for that reason.

Moreover, Rule 4(b) of the Rules on Appeal permits the use of a partial reporter's transcript only by stipulation or when 'appellant, in his notice to the clerk, states the points to be raised by him on the appeal.' Neither of these conditions precedent was fulfilled here.

The inclusion of exhibits in a clerk's transcript (Rules 4(d) and 5(b)) is appropriate only as a supplement to a reporter's transcript. That procedure does not apply to an appeal on the judgment roll and cannot enlarge the scope of the same. The presumption that the record includes all matters material to a determination of the points on appeal does not apply to a judgment roll appeal unless the error claimed by appellant appears on the face of the record (Rule 52). The sufficiency of the evidence cannot be reviewed. 'In this type of appeal, since 'the evidence...