Travers v. Louden
| Decision Date | 04 October 1967 |
| Citation | 254 Cal.App.2d 926,62 Cal.Rptr. 654 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Tad TRAVERS, Plaintiff and Appellant, v. Arthur J. LOUDEN, Lula Louden and Robert D. Highman, Defendants and Respondents. Civ. 29809. |
Tanner, Odell & Taft, Everett Shilling, Los Angeles, for appellant.
Alan A. Sigel, Los Angeles, for respondents.
*
This action was brought by Tad Travers against Arthur J. Louden and wife and Robert E. Highman seeking declaratory relief. The Loudens made a motion for summary judgment, the motion was granted and the action was dismissed as to all defendants. Plaintiff appeals. The respondents have not filed a brief.
The amended complaint alleged that on August 12, 1963, Louden agreed to sell and Travers agreed to buy Lot 37, Tract 530, situated in Torrance, California for $35,000; Travers paid $100 of the purchase price; the agreement provided 'If for any reason, undersigned, as seller, is unable to deliver a good and merchantable title to said Lot 37 within 90 days from date hereof seller agrees to return said $100 and this agreement shall cease and terminate.' The agreement contained other provisions, but none that have any bearing upon the merits of the appeal. The complaint also alleged that on September 15, 1963, plaintiff learned that Highman had recorded an option to purchase part of lot 37 from Louden for $28,000, or, for $5,000 if Louden abandoned a well on the premises; the purchase price was to be paid upon conclusion of a pending action which affected the title 'or sooner at the discretion of the undersigned.' (Louden.) When Travers and Louden discovered that the option had been recorded they agreed that a suit to quiet title against Highman would be filed, Travers would assist in the suit and pay half the costs, the sales agreement would remain in force 'pending said lawsuit' and 'that upon quieting title to the property in such lawsuit, said Sales Agreement marked Exhibit A would be consummated'; the suit was filed and Travers assisted in it and offered to pay half the costs. September 15, 1964, Louden sent Travers a check for $100 and a notice that he was unable to deliver title because of the Highman option; Travers refused to consent to termination of the agreement. September 16, 1964, Louden conveyed the lot to Highman; Highman then had full knowledge of the Travers agreement; on information and belief that the conveyance to Highman was without consideration. It was alleged that Louden had given notice that he would abandon an oil well on the lot; he had no right to abandon the well and Travers would hold him responsible for $160,000 as damages. It was alleged that the claim of Travers of a right to acquire the property under the agreement was denied by Louden. The prayer of the complaint was merely for declaratory relief, and general relief. There was no specification of rights or duties as to which a declaration was sought, nor as to the nature of the relief that was expected.
The defendants did not demur to the amended complaint or file an answer. In support of the motion of the Loudens for summary judgment, affidavits of Louden and Highman were filed. It was averred in the affidavit of Louden that he sent a check to Travers for $100 and a written notice stating that he was unable to furnish good title to the lot because of the Highman option, and quoting the provision of the agreement which gave him the right to terminate it. It was stated that Travers kept the check and acknowledged Louden's right to terminate the agreement. Highman's affidavit stated that when he received a deed to the lot he paid a valuable consideration for it, he had no knowledge of Travers' claims, and that he conveyed the lot to a third person. Travers filed an affidavit stating that Highman had knowledge of Travers' agreement long before he received a deed. Travers' attorney filed an affidavit stating that the $100 check was returned to Louden. Other statements as to evidentiary matters are not relevant to our discussion.
The order directing summary judgment stated there was no triable question of fact shown to exist; this was the reason for the court's refusal to permit the case to go to trial. We have reached the conclusion that the judgment must be affirmed, but for reasons other than the one adopted by the trial court.
It was shown by the complaint, and not controverted by answer or defendants' affidavits, that there is a controversy whether Louden breached his contract with Travers. If he had a right to terminate the agreement as he did, Travers has not been wronged. If he had no right to so terminate it, Travers may bring a plenary action for damages or for equitable relief. The primary question in that action would be whether Louden was or was not able to deliver a good title within the agreed time. This issue, as we shall see, was not before the court for decision, nor was any question presented as to the right to redress that Travers might have for the alleged breach of the contract.
The complaint does not allege that Travers has suffered damage, nor pray for damages. It does not purport to state a case for specific performance. It alleges that Louden no longer owns the property and does not name as a party the person who acquired title from Highman. In numerous other respects it fails to allege facts which would have enabled the court to decree specific performance. It does not allege uncertainty as to the meaning of the contract or pray for its interpretation. It merely alleges a breach of the contract as a foundation for some unspecified claim of a right to redress. No facts are alleged which would render necessary or proper a declaration with respect to the future conduct of the parties. The only question posed by the complaint was as to the remedy which plaintiff might pursue. This was a question which the court was not required to answer.
In our research of the subject we have found no authority for the proposition that declaratory relief is proper procedure when the rights of the complaining party have crystallized into a cause of action for past wrongs, all relationship between the parties has ceased to exist and there is no conduct of the parties subject to regulation by the court. Rarely has the declaratory procedure been resorted to in such a situation and never, we believe, with success.
In three cases California courts have expressed views upon the subject:
In Standard Brands of California v. Bryce, 1 Cal.2d 718, 37 P.2d 446, the action was for declaratory relief. The plaintiff appealed from an order transferring the action from the City and County of San Francisco to the County of Los Angeles. The complaint alleged that Barrett and Hilp had erected a building in Los Angeles for the plaintiff and that one Bryce, an adjoining owner, was claiming that in the construction of the building his property had been damaged. The relief sought was a declaration of rights as between plaintiff and Bryce and that the liability, if any, be declared to be that of Barrett and Hilp. In upholding an order transferring the action to the County of Los Angeles the court held that the threatened suit would be for damages to real property, with venue in Los Angeles County. It was also held that an action for declaratory relief for the settlement of this controversy would not lie. The court said: ...
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City of Tiburon v. Northwestern Pac. R. Co.
...70 Cal.Rptr. 504; Burke v. City, etc., of San Francisco, supra, 258 Cal.App.2d 32, 34, 65 Cal.Rptr. 539; Travers v. Louden (1967) 254 Cal.App.2d 926, 932, 62 Cal.Rptr. 654; Hagan v. Fairfield (1965) 238 Cal.App.2d 197, 202, 47 Cal.Rptr. 600; Auberry Union School Dist. v. Rafferty (1964) 226......
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Green v. Travelers Indemnity Co.
...and would address only past wrongs (Babb v. Superior Court (1971) 3 Cal.3d 841, 92 Cal.Rptr. 179, 479 P.2d 379; Travers v. Louden (1967) 254 Cal.App.2d 926, 62 Cal.Rptr. 654); and (4) the stay order is supported by both the bankruptcy court's order and the circumstances of the instant case.......
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Gafcon, Inc. v. Ponsor & Associates, D037229.
...than execute them.'" (Babb v. Superior Court (1971) 3 Cal.3d 841, 848, 92 Cal.Rptr. 179, 479 P.2d 379, quoting Travers v. Louden (1967) 254 Cal.App.2d 926, 931, 62 Cal.Rptr. 654.) "`The principle that courts will not entertain an action which is not founded on an actual controversy is a ten......
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Pub. Serv. Mut. Ins. Co. v. Liberty Surplus Ins. Corp.
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