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the time that the market which he had cre against the just and lawful claims and ated had been destroyed in consequence of demands of all persons whomsoever, can the breach of the contract; and, where it is not be construed as a contract whereby the also shown that such defendants had con- grantor agreed to acquire and convey, or verted the secret ingredient to their own cause the owner thereof to convey, an outuse, the value thereof is to be added to the standing paramount title to the grantee, damage.—Grosse V. Petersen, 30 Cal. App. but is merely a promise to make compensa482, 158 Pac. 511.
tion in money for loss due to an eviction.8. Where a contract is entered into by Tropico Land & Imp. Co. v. Lambourn, 170 the parties with reference to special circum Cal. 33, 148 Pac. 206. stances known to them both, the damages 2. The covenant of warranty in a deed for a breach are not only those arising conveying land, or any interest in land, is an naturally therefrom and according to the undertaking by the warrantor that on the usual course of business, but also those failure of the title which the deed purports which under the special circumstances con to convey, either for the whole estate or nected with the transaction flowed from the for part only, by setting up a superior title, breach.-Grosse v. Petersen, 30 Cal. App. he will make compensation in money for 482, 158 Pac. 511.
the loss sustained by such failure.-Tropico 9. Contract to put in street-work, side- Land & Imp. Co. v. Lambourn. 170 Cal. 33. walks, curbs.-The owner upon the breach 148 Pac. 206. of the provision in the original agreement 3. Price paid on portion thereof (subd. as to the putting in of street-work, side 1),—The measure of damages established walks and curbs, is entitled to recover as by the code was one generally, if not unidamages the reasonable cost of such work,
versally, prevailing prior to its enactment.
Versally prevai notwithstanding the contract had not been McCormick v. Marcy, 165 Cal. 386, 132 terminated and no forfeiture declared.- Pac. 449. Turner v. Howze, 28 Cal. App. 167, 151 Pac.
4. This remains the measure of damages 751.
despite the fact that the covenantee, prior 10. Contract to supply oil.-In an action
to the breach, had conveyed the land, with to recover damages for a breach of contract
a similar covenant, for a less consideration, to supply plaintiff with all the crude oil
and after the breach had settled with his required to keep its refinery running at
grantee for a corresponding lesser amount. full capacity at a fixed price, the measure
--McCormick v. Marcy, 165 Cal. 386, 132 of damages is that fixed by this section, and
Pac. 449. not measured under sections 3353 and 3354.
5. The measure of damages, where there -National Oil Ref. & Mfg. Co. v. Producers'
has been an actual loss of the premises, Ref. Co., 169 Cal. 740, 147 Pac. 963.
is the purchase price and interest to date 11. In determining the amount of dam
of eviction.-Tropico Land & Imp. Co. v. ages sustained by the plaintiff from the
Lambourn, 170 Cal. 33, 148 Pac. 206. breach of a contract to furnish sufficient crude oil to run a refinery, which contract
$ 3306. also provided that the defendant was to purchase from the plaintiff the products
1. Measure of damages-Breach of agreeof the refinery, it is proper to estimate
ment to convey realty.Where the court the loss of profit to the plaintiff by reason
adopted the measure of damages contemof the failure of the defendant to furnish
plated herein instead of that contemplated oil at a fixed price and to repurchase the
by section 3304 it makes but little differproducts after refinement, also at a fixed
ence where the element of bad faith enters, price.-National Oil Ref. & Mfg. Co. v. Pro
for that would clothe the court with the ducers' Ref. Co., 169 Cal. 740, 147 Pac. 963.
power to fix damages according to the detri
ment shown by the existing special circum$ 3302.
stances of the case.-Kline V. Guaranty Oil
Co., 167 Cal. 476, 140 Pac. 1. 1. Wrongful refusal of bank to pay 2. In an action to compel specific performcheck.-The measure of damages against a ance of such a contract on the part of the bank for its mere negligence in wrongfully
vendors and to recover damages for the refusing to pay a check drawn upon it is
failure of title of the vendors as to twenty that provided in this section.-Hartford v.
acres of the land involved, the measure All Night and Day Bank, 170 Cal. 538,
of the plaintiff's damage is not the value L. R. A. 1916 A 1220, 150 Pac. 356.
of the twenty acres, but the proportionate
value thereof to the value of the whole area 3304.
described in the contract.-Butte Creek
Consol. Dredging Co. v. Olney, 173 Cal. 697, MEASURE OF DAMAGES FOR BREACH
161 Pac. 260. OF COVENANT.
3. Where a court of equity finds itself 1, 2. As to generally.
unable to enforce conveyance of all the land 3-5. Price paid or portion thereof (subd. 1).
described in a contract of sale it will compel 1. As to generally. - A warranty in a compliance with the agreement as far as deed that the real estate therein described possible at the rate agreed upon between is free from all incumbrances and that the the contracting parties; and the same measgrantor and her heirs, executors and admin- ure must be applied in estimating the proistrators will warrant and defend the same portion of the purchase price recoverable
by one who has mistakenly paid for more land than the vendor is able to convey.Butte Creek Consol. Dredging Co. v. Olney, 173 Cal. 697, 161 Pac. 260.
1. Measure of damages for breach of contract of sale of personal property-The measure of damages for the failure of the seller of timber to deliver an agreed quantity, is that laid down in this section as "the excess, if any, of the value of the property to the buyer over the amount which would have been due to the seller under the contract, had it been fulfilled," and this value to the buyer is fixed by section 3354 of the Civil Code as the price at which he might have bought an equivalent thing in the nearest market. —California Sugar & White Pine Agency v. Penoyar, 167 Cal. 274, 139 Pac. 671.
2. The measure of damages, where sellers of chalk did not make delivery at the agreed time, is the difference between the market value of the chalk when it should have been delivered and its market value when it was delivered. If there has been no change in the market value, the sellers are not liable for damages to the buyer, notwithstanding the agreed price may have been less than the market price and the buyer was conducting a business which required chalk at the time specified for deliv. ery and was compelled to pay the market price therefor.-West Coast Kalsomine Co. v. Lund, 230 Fed. 855.
& P. Co. v. Town of Sausalito, 168 Cal. 587, 143 Pac. 767.
2. Where the property consists of a growing crop which was destroyed by the elements before it was harvested and was never in a condition to be delivered to the buyer this section does not furnish the true measure of damages, but the measure is that provided in section 3300.-Griffith v. Welbanks & Co., 29 Cal. App. 238, 155 Pac. 120.
3. The law seeks to give the complaining party the value of his bargain-to prevent a loss which the fulfillment of the contract would have prevented-to put the injured party, so far as money can do it, in the same position as if the contract had been performed.-Griffith v. Welbanks & Co., 29 Cal. App. 238, 155 Pac. 120.
4. In an action by a seller of hops for damages for the purchaser's breach of contract, the measure of recovery is the difference between the contract price and the market price at the time and place of delivery, where there is no allegation in the complaint that the hops were resold or as to the price at which they were resold.Pabst Brewing Co. v. Clemens Horst Co., 229 Fed. 913.
3313. 1. Measure of damages for breach of warranty of personal property.In an action for damages for the breach of an express warranty of coffee bags where the bags were intended to be shipped to a foreign port and the defendants had knowledge thereof, the damages are properly fixed with reference to the market value of the bags at the port to which they were to be shipped.-W. R. Grace & Co. v. Levy, 30 App. 231. 156 Pac. 626.
1. Measure of damages for breach of contract to buy personal property.-A contract between a municipality and water company for the purchase of a bulk supply of water for a period of years is not the usual agreement to accept and pay for personal property. The measure of damages is not that laid down herein. The minimum rate is the true measure of recovery, the promise to pay such sum being a part of the direct obligation of the contract and not a covenant for liquidated damages.—Marin Water
1. Measure of damages for breach of carrier's obligation to deliver.The measure of damages for the loss of goods in an action brought against a carrier at the point of destination is the value of the goods there.—Canadian Pac. R. Co. v. Wieland, 226 Fed. 670.
$ 3320. LIABILITY FOR NONPAYMENT OF CHECK. No bank shall be liable to a depositor because of the nonpayment through mistake or error, and without malice, of a check which should have been paid unless the depositor shall allege and prove actual damage by reason of such nonpayment and in such event the liability shall not exceed the amount of damage so proved.
History: Enactment approved May 17, 1917, Stats. and Amdts. 1917,
p. 622. In effect July 27, 1917. 8 3333.
1. Construction of section—To what apMEASURE OF DAMAGES FOR WRONGS plicable.-This section deals with property OTHER THAN BREACH OF CONTRACT. having no market value.-Willard v. Valley 1. Construction of section-To what appli
Gas & Fuel Co., 171 Cal. 9, 151 Pac. 286. cable.
2. Action for libel. — The rule for the 2. Action for libel.
measure of damages in a libel case, where 3-5. Damages to property.
there is no charge of fraud or malice or 6. Wrongful removal of property.
claim for vindictive or exemplary damages
is that laid down herein.-Adams V. Cam- 8 3336.
1. Damage for conversion-Mining stocks
(subd. 1) --This measure of damages is approximately caused in the absence of the
plicable to mining stocks where they have total destruction of the property injured
been wrongfully converted. —Potts V. Paxis the difference in the value of the property immediately before and after the injury,
ton, 171 Cal. 493, 153 Pac. 957. provided, however, that if the injury be
2. Where the plaintiff in an action for capable of repair at an expense less than
such a conversion prosecutes the action with the diminution in value of the property as
reasonable diligence, he is entitled to reinjured, the damage is limited to the cost
cover as damages the highest market value of making such repair.-Kincaid v. Dunn,
of the stock at any time between the con26 Cal. App. 686, 148 Pac. 235.
version and the verdict, notwithstanding 4. While it is true that no recovery can
that in his complaint he only asked for be had in personal injury suits for services
damages in the value of the stock at the rendered by physicians in attending the in
time of the conversion.—Potts V. Paxton, jured, unless such bills have been paid,
171 Cal. 493, 153 Pac. 957. or at least liability incurred therefor, the
3. Where the plaintiff has prosecuted the rule does not apply in an action to recover
action with reasonable diligence, he is not for damages to personal property; in the
required to plead the exercise of his option one case the damages are special and can
to demand the highest market value, but arise only out of the fact that the expense
he may announce it in any appropriate way, has been incurred and constitutes a liability
even by oral declaration in open court.against the plaintiff, whereas in the other
Potts v. Paxton, 171 Cal. 493, 153 Pac. 957. the action is for general damages.-Kincaid
4. Where the probative facts establishing v. Dunn, 26 Cal. App. 686, 148 Pac. 235.
the highest market value of the stock are 5. Proof of expenses incurred, as well as
found, it can not be contended that plaintifr proof of money actually expended, in repair
is not entitled to judgment therefor, because ing and replacing broken parts of the auto
of an absence of finding of damage in such mobile. is admissible on the question of regard.-Potts V. Paxton, 171 Cal. 493, 153 damage.--Kincaid v. Dunn, 26 Cal. App. 686. Pac. 957. 148 Pac. 235. 6. Wrongful removal of property.-In an
$3337. action by a lessor against the stockholders 1. Damages for conversion-Construction. of a corporation for damages for the wrong -This section "was never meant to apply ful removal by the corporation of a quantity to a case where the owner received a mere of casing from an oil well drilled by it on consequential benefit. It was only intended the lands of the lessor, the correct measure to affect cases where the entire beneficial of the plaintiff's damages is not the amount value of the property was applied to the which it would cost to replace the well in use of the owner." Therefore the question the same condition it was in at the time whether the defendants had a rightful posof removal, but simply the value of the session from the beginning is immaterial.casing when removed from the well, where Corey v. Struve, 170 Cal. 170, 149 Pac. 48. it is shown that the land was barren and desert land and valuable only if it contained 3341. oil, and that no oil had been discovered
1. Damage for injury to animals-Contherein.-Johnson v. Hinkel, 29 Cal. App. 78,
struction. — There is nothing contained in 154 Pac. 487.
this section which limits or takes away
the natural right in one to defend his fowls § 3334.
upon his own premises from the attack of 1. Damages for wrongful occupation of trespassing dogs. Sabin v. Smith, 26 Cal. real property.-In an action for damages App. 676, 147 Pac, 1180. for the interference with an easement to a 2. The fact that the legislature by omitcertain supply of water the measure of ting the word poultry in subdivision 2 damages for cutting off the supply is prop intended to exclude poultry from the enuerly measured by a reduction in the rentalmeration of animals which might be devalue of the dominant estate where it ap stroyed is a contention which can not be pears from the evidence that the diminution maintained.—Sabin v. Smith, 26 Cal. App. in the amount of the water was the sole 676, 147 Pac. 1180. reason for the reduction of the rent.-Cheda v. Bodkin, 173 Cal. 7, 158 Pac, 1025.
1. Value, how estimated in favor of $ 3335.
seller.-In an action by a seller for breach 1. Damages for wilful holding over of a contract to purchase a certain specified Construction.Under this section sentimen quantity of quart bottles, the measure of tal value can not be recovered except as damages is that fixed by section 3353 of the against one “having notice thereof or a Civil Code, which provides that in estiwilful wrongdoer" (Sloss, J., concurring). mating damages the value of property to a Willard v. Valley Gas & Fuel Co., 171 Cal. 9, seller thereof is deemed to be the price 151 Pac. 286.
which he could have obtained therefor in
Tit.III,chs.I,II.) the market nearest the place at which it sum total of the contract price, instead of should have been accepted by the buyer, being taken to the nearest market, where and at such time after the breach of the they could have been sold at an advance contract as would have sufficed with reason over the contract price, the seller is entitled able diligence for the seller to effect a at most to but nominal damages.—Lund v. resale.—Lund v. Lachman, 29 Cal. App. 31, Lachman, 29 Cal. App. 31, 154 Pac. 295. 154 Pac. 295.
2. It is the duty of the seller regardless of everything to go into the open market 1. Preventive relief.-An injunction reand obtain for the rejected goods the high straining trespass is not mandatory but est obtainable market price therefor; the strictly prohibitory. - United Railroads V. market value being the highest price in Superior Court, 172 Cal. 80, 155 Pac. 463. the market where it is offered for sale which those having the means and inclina 3384. tion to buy are willing to pay for it.—Lund
SPECIFIC PERFORMANCE. v. Lachman, 29 Cal. App. 31, 154 Pac. 295.
1. Construction of section. 3. A seller of wine bottles who, upon the
2. As to discretion of court. buyer refusing to accept them, fails to resell
3. Agreement to convey. at the prevailing market price which would 4. 5. Agreement to leave property by will. have saved him from loss, is entitled only 6. 7. Laches-Effect of. to damages for breach of the contract of
8. —When not estopped to bring action, sale.—Lund v. Lachman, 29 Cal. App. 31, 154 Pac. 295.
1. Construction of section. This section
simply means that specific performance may 4. In an action by a seller for breach of
be compelled in any case where the circumcontract to purchase a certain quantity of
stances are such as to authorize such relief quart bottles, evidence of the prevailing
under the well settled doctrines of equity market price during the period following
jurisprudence, except as otherwise provided the tender and rejection of the bottles is
herein.--Morrison V. Land, 169 Cal. 580, 147 admissible.—Lund v. Lachman, 29 Cal. App.
Pac. 259. 31, 154 Pac. 295. 5. Where the case is tried upon the sug
2. As to discretion of court.-The grant
ing or withholding of specific performance gestion of the counsel for the defendant,
is within the discretion of a chancellor, and and against the protest of the plaintiff on
that specific performance will be decreed the theory that the measure of plaintiff's
only under equitable circumstances, quite damage is covered and controlled by the
regardless of the express terms of a conprovisions of section 3311 and this section
tract.-Hershey v. Los Angeles Pac. Co., 171 he can not afterward insist on appeal that
Cal. 353, 153 Pac. 230. the damages should have been established under the provisions of section 1512.-Mer
3. Agreement to convey.-An oral agreerill v. Kohlberg. 29 Cal. App. 382155 Pac.
ment between two brothers that if one of 824.
them would give or convey to the other a
lot owned by the former, the latter would 8 3355.
erect thereon a suitable home for their
parents and furnish the same at his own 1. Property of pecullar value-Construc
cost and expense, is sufficiently certain and tion. — This section deals with property
definite to warrant its specific enforcement which has a market value and also a pecu
as against the owner of the lot.- Magee v. liar market value and not with property
Magee, 174 Cal. — 162 Pac. 1023. having no market value.-Willard v. Valley Gas & Fuel Co., 171 Cal. 9, 151 Pac. 286.
4. Agreement to leave property by will.
A man may make a valid contract binding 3358.
himself to dispose of his property in a par
ticular way by last will and testament, and 1. Limitation of damages. — Courts will
a court of equity will enforce such an agreenot, except where exemplary damages are
ment specifically by treating the heirs as given, allow a party to a contract to recover
trustees and compelling them to convey the upon its breach more than he would have
property in accordance with the terms of received by its due performance.-Johnson
the contract.—Monsen v. Monsen, 174 Cal. v. Kinkel, 29 Cal. App. 78, 154 Pac. 487.
- 162 Pac. 90.
5. In order to warrant the specific en8 3360.
forcement of a contract, the terms thereof 1. Nominal damages.—Nominal damages must be definite and certain, and the making mean merely an inconsiderate, trifling sum, of the contract shown by clear and satissuch as "a penny, one cent, six cents."— factory evidence of a substantial nature.Lund v. Lachman, 29 Cal. App. 31, 154 Pac. Monsen v. Monsen, 174 Cal. — 162 Pac. 90. 295.
6. Lachey-Effect of.-A delay of eighteen 2. Where it is shown that the seller, upon months in bringing an action for specific the refusal of the buyer to accept the goods, performance of a contract to convey land, removed the same to a warehouse, where does not constitute such a lack of diligence they were stored and insured, and from as to constitute laches, in the absence of any time to time sold at private sale at varying showing to indicate that the defendant had prices for an aggregate sum less than the been injured by the delay, or that his de
fense was rendered more difficult thereby. 2. An alleged agreement for the sale of McGibbon v. Schmidt, 172 Cal. 70, 155 Pac. real property which is not signed by the 460.
owner thereof, and which does not name the 7. Specific performance of an option con owner therein, but which is signed only by tract for the sale of real property is prop agents whose only authority consists of a erly refused where a period of almost three letter asking them "to try and find a puryears and nine months had elapsed before chaser for the property," is not sufficient to such performance was sought, and no valid justify a decree of specific performance.tender of the purchase price was ever made, Fritz v. Mills, 170 Cal. 449, 150 Pac. 375. or no excuse for the delay shown other than the absence of the vendor from the
§ 3389. state for a few months.-Superior California
1. Liquidated damages-Construction of Fruit Land Co. v. Grossman, 32 Cal. App.
section.-A contract will not be specifically 357, 162 Pac. 1046.
enforced, however, simply because it con8. When not estopped to bring action.
tains a provision for liquidated damages.-The prosecution of an unsuccessful action
Morrison v. Land, 169 Cal. 580, 147 Pac. 259. to recover the purchase price of land does not estop the vendee from thereafter bring
§ 3390. ing an action for specific performance of the contract, where the former action was
1. What can not be specifically enforcednot based on fraud, but for money had and
Building contracts.-Courts of equity will received, and could not have been success
not specifically enforce building contracts, fully maintained except by proof that the where the performance can not be consumcontract had been rescinded or the defen mated by one transaction, and when the dant guilty of a breach thereof.-McGibbon contract, according to its terms, requires a v. Schmidt, 172 Cal. 70, 155 Pac. 460.
succession of acts and a protracted super
vision, with special knowledge and skill in $ 3387.
its oversight and management.-Crane v. SPECIFIC PERFORMANCE
Roach, 29 Cal. App. 584, 156 Pac. 375.
2. Must be certainty of terms (subd. 6). 1. Disputable presumption as to personalty.
-No action will lie to enforce the perform2. —What necessary to overcome.
ance of a contract, or to recover damages 3. Oral contract to convey land.
for its breach, unless it is complete and cer
tain; and the rule applies as well to price as 1. Disputable presumption as to person
to subject-matter and parties.-Wineburgh alty.The presumption that a breach of an agreement to transfer personal property
V. Gay, 27 Cal. App. 603, 150 Pac. 1003 can be adequately relieved by pecuniary
$3391. compensation is a disputable one and where adequate pecuniary compensation can be COMPELLING SPECIFIC PERFORMANCE. made specific performance will not be en 1-4. As to pleading consideration. forced. When facts are alleged showing 5–7. -Sufficiency of complaint. that pecuniary compensation will not afford 8, 9. —Burden of proof. adequate relief the objection that an ade 10-14. Determination as to what is a. quate remedy at law exists is removed and 15. Where fraud, accident, surprise, or specific performance will in proper cases be
mistake intervenes. enforced.-Gilfallan v. Gilfallan, 168 Cal. 23, 141 Pac. 623.
1. As to pleading consideration.-Inade2. What necessary to overcome. - In quacy of consideration is an independent order to overcome the presumption of this
and distinct ground for denying specific persection the complaint must aver facts show
formance.-Haddock v. Knapp, 171 Cal, 59, ing that pecuniary compensation will not 151 Pac. 1140. afford adequate relief where the transfer 2. There must be an averment of the adeis of personal property.-Young v. Matthew
property. Young y. Matthew quacy of the consideration in the pleading. Turner Co., 168 Cal. 671, 143 Pac. 1029.
O'Hara v. Wattson, 172 Cal. 525, 157 Pac. 3. Oral contract to convey land.-An oral 608. contract to convey land will not be spe. 3. It is not necessary in an action for cifically enforced by a court of equity if specific performance that the complaint there has been no part performance suffi should declare in the very words of the cient to take it out of the statute of frauds. code that there was “an adequate consid-Woerner v. Woerner, 171 Cal. 299, 152 eration for the contract" and that it was Pac. 919.
"just and reasonable"; the proper mode of
pleading is to set forth the facts from which 8 3388.
the court may conclude that the contract 1. Specific performance-Unilateral con is supported by an adequate consideration tract.-An agreement for the sale of land and is, as to the defendants, fair and just.may be specifically enforced by the vendee Magee v. Magee, 174 Cal. — 162 Pac. 1023. although he may not have signed the same 4. The adequacy of the consideration must and it could not originally have been en- be both pleaded and proved.—Colm v. Franforced against him because of the fact that cis, 30 Cal. App. 742, 159 Pac. 237. he had not signed it. Copple v. Aigeltinger, 5. -Sufficiency of complaint.--A com167 Cal. 706, 140 Pac. 1073.
plaint in an action for specific performance