ÆäÀÌÁö À̹ÌÁö
PDF
ePub

is that laid down herein.-Adams v. Cameron, 27 Cal. App. 625, 150 Pac. 1005.

3. Damages to property.-The detriment proximately caused in the absence of the total destruction of the property injured is the difference in the value of the property immediately before and after the injury, provided, however, that if the injury be capable of repair at an expense less than the diminution in value of the property as injured, the damage is limited to the cost of making such repair.-Kincaid v. Dunn, 26 Cal. App. 686, 148 Pac. 235.

4. While it is true that no recovery can be had in personal injury suits for services rendered by physicians in attending the injured, unless such bills have been paid, or at least liability incurred therefor, the rule does not apply in an action to recover for damages to personal property; in the one case the damages are special and can arise only out of the fact that the expense has been incurred and constitutes a liability against the plaintiff, whereas in the other the action is for general damages.-Kincaid v. Dunn, 26 Cal. App. 686, 148 Pac. 235.

5. Proof of expenses incurred, as well as proof of money actually expended, in repairing and replacing broken parts of the automobile, is admissible on the question of damage.-Kincaid v. Dunn, 26 Cal. App. 686, 148 Pac. 235.

6. Wrongful removal of property.—In an action by a lessor against the stockholders of a corporation for damages for the wrongful removal by the corporation of a quantity of casing from an oil well drilled by it on the lands of the lessor, the correct measure of the plaintiff's damages is not the amount which it would cost to replace the well in the same condition it was in at the time of removal, but simply the value of the casing when removed from the well, where it is shown that the land was barren and desert land and valuable only if it contained oil, and that no oil had been discovered therein.-Johnson v. Hinkel, 29 Cal. App. 78, 154 Pac. 487.

[blocks in formation]
[blocks in formation]

2.

Where the plaintiff in an action for such a conversion prosecutes the action with reasonable diligence, he is entitled to recover as damages the highest market value of the stock at any time between the conversion and the verdict, notwithstanding that in his complaint he only asked for damages in the value of the stock at the time of the conversion.-Potts v. Paxton, 171 Cal. 493, 153 Pac. 957.

3. Where the plaintiff has prosecuted the action with reasonable diligence, he is not required to plead the exercise of his option to demand the highest market value, but he may announce it in any appropriate way, even by oral declaration in open court.Potts v. Paxton, 171 Cal. 493, 153 Pac. 957. 4.

Where the probative facts establishing the highest market value of the stock are found, it can not be contended that plaintiff is not entitled to judgment therefor, because of an absence of finding of damage in such regard.-Potts v. Paxton, 171 Cal. 493, 153 Pac. 957.

§ 3337.

1. Damages for conversion—Construction. -This section "was never meant to apply to a case where the owner received a mere consequential benefit. It was only intended to affect cases where the entire beneficial value of the property was applied to the use of the owner." Therefore the question whether the defendants had a rightful possession from the beginning is immaterial.— Corey v. Struve, 170 Cal. 170, 149 Pac. 48.

§ 3341.

1. Damage for injury to animals-Construction. -There is nothing contained in this section which limits or takes away the natural right in one to defend his fowls upon his own premises from the attack of trespassing dogs.-Sabin v. Smith, 26 Cal. App. 676, 147 Pac. 1180.

2. The fact that the legislature by omitting the word poultry in subdivision 2 intended to exclude poultry from the enumeration of animals which might be destroyed is a contention which can not be maintained.-Sabin v. Smith, 26 Cal. App. 676, 147 Pac. 1180.

§ 3353.

1. Value, how estimated in favor of seller. In an action by a seller for breach of a contract to purchase a certain specified quantity of quart bottles, the measure of damages is that fixed by section 3353 of the Civil Code, which provides that in estimating damages the value of property to a seller thereof is deemed to be the price which he could have obtained therefor in

[blocks in formation]

2. It is the duty of the seller regardless of everything to go into the open market and obtain for the rejected goods the highest obtainable market price therefor; the market value being the highest price in the market where it is offered for sale which those having the means and inclination to buy are willing to pay for it.-Lund v. Lachman, 29 Cal. App. 31, 154 Pac. 295.

3. A seller of wine bottles who, upon the buyer refusing to accept them, fails to resell at the prevailing market price which would have saved him from loss, is entitled only to damages for breach of the contract of sale.-Lund v. Lachman, 29 Cal. App. 31, 154 Pac. 295.

4. In an action by a seller for breach of contract to purchase a certain quantity of quart bottles, evidence of the prevailing market price during the period following the tender and rejection of the bottles is admissible.-Lund v. Lachman, 29 Cal. App. 31, 154 Pac. 295.

5. Where the case is tried upon the suggestion of the counsel for the defendant, and against the protest of the plaintiff on the theory that the measure of plaintiff's damage is covered and controlled by the provisions of section 3311 and this section he can not afterward insist on appeal that the damages should have been established under the provisions of section 1512.-Merrill v. Kohlberg, 29 Cal. App. 382, 155 Pac. 824.

[blocks in formation]
[blocks in formation]

SPECIFIC PERFORMANCE.

1. Construction of section. 2. As to discretion of court. 3. Agreement to convey.

4, 5. Agreement to leave property by will. 6, 7. Laches-Effect of.

8. When not estopped to bring action. 1. Construction of section. This section simply means that specific performance may be compelled in any case where the circumstances are such as to authorize such relief under the well settled doctrines of equity jurisprudence, except as otherwise provided herein. Morrison v. Land, 169 Cal. 580, 147 Pac. 259.

2. As to discretion of court. The granting or withholding of specific performance is within the discretion of a chancellor, and that specific performance will be decreed only under equitable circumstances, quite regardless of the express terms of a contract.-Hershey v. Los Angeles Pac. Co., 171 Cal. 353, 153 Pac. 230.

3. Agreement to convey.-An oral agreement between two brothers that if one of them would give or convey to the other a lot owned by the former, the latter would erect thereon a suitable home for their parents and furnish the same at his own cost and expense, is sufficiently certain and definite to warrant its specific enforcement as against the owner of the lot.-Magee v. Magee, 174 Cal., 162 Pac. 1023.

[blocks in formation]

5. In order to warrant the specific enforcement of a contract, the terms thereof must be definite and certain, and the making of the contract shown by clear and satisfactory evidence of a substantial nature.Monsen v. Monsen, 174 Cal., 162 Pac. 90.

6. Laches-Effect of.-A delay of eighteen months in bringing an action for specific performance of a contract to convey land, does not constitute such a lack of diligence as to constitute laches, in the absence of any showing to indicate that the defendant had been injured by the delay, or that his de

fense was rendered more difficult thereby.McGibbon v. Schmidt, 172 Cal. 70, 155 Pac.

460.

7. Specific performance of an option contract for the sale of real property is properly refused where a period of almost three years and nine months had elapsed before such performance was sought, and no valid tender of the purchase price was ever made, or no excuse for the delay shown other than the absence of the vendor from the state for a few months.-Superior California Fruit Land Co. v. Grossman, 32 Cal. App. 357, 162 Pac. 1046.

8. -When not estopped to bring action. -The prosecution of an unsuccessful action to recover the purchase price of land does not estop the vendee from thereafter bringing an action for specific performance of the contract, where the former action was not based on fraud, but for money had and received, and could not have been successfully maintained except by proof that the contract had been rescinded or the defendant guilty of a breach thereof.-McGibbon v. Schmidt, 172 Cal. 70, 155 Pac. 460.

[blocks in formation]

1.

Disputable presumption as to personalty. The presumption that a breach of an agreement to transfer personal property can be adequately relieved by pecuniary compensation is a disputable one and where adequate pecuniary compensation can be made specific performance will not be enforced. When facts are alleged showing that pecuniary compensation will not afford adequate relief the objection that an adequate remedy at law exists is removed and specific performance will in proper cases be enforced.-Gilfallan v. Gilfallan, 168 Cal. 23, 141 Pac. 623.

necessary to overcome.

In

2. -What order to overcome the presumption of this section the complaint must aver facts showing that pecuniary compensation will not afford adequate relief where the transfer is of personal property.-Young v. Matthew Turner Co., 168 Cal. 671, 143 Pac. 1029.

3. Oral contract to convey land.—An oral contract to convey land will not be specifically enforced by a court of equity if there has been no part performance sufficient to take it out of the statute of frauds. -Woerner v. Woerner, 171 Cal. 299, 152 Pac. 919.

§ 3388.

1. Specific performance—Unilateral contract.-An agreement for the sale of land may be specifically enforced by the vendee although he may not have signed the same and it could not originally have been enforced against him because of the fact that he had not signed it.-Copple v. Aigeltinger, 167 Cal. 706, 140 Pac. 1073.

2. An alleged agreement for the sale of real property which is not signed by the owner thereof, and which does not name the owner therein, but which is signed only by agents whose only authority consists of a letter asking them "to try and find a purchaser for the property," is not sufficient to justify a decree of specific performance.Fritz v. Mills, 170 Cal. 449, 150 Pac. 375.

§ 3389.

1. Liquidated damages-Construction of section. A contract will not be specifically enforced, however, simply because it contains a provision for liquidated damages.— Morrison v. Land, 169 Cal. 580, 147 Pac. 259.

§ 3390.

1. What can not be specifically enforcedBuilding contracts.-Courts of equity will not specifically enforce building contracts, where the performance can not be consummated by one transaction, and when the contract, according to its terms, requires a succession of acts and a protracted supervision, with special knowledge and skill in its oversight and management.-Crane v. Roach, 29 Cal. App. 584, 156 Pac. 375.

2. -Must be certainty of terms (subd. 6). -No action will lie to enforce the performance of a contract, or to recover damages for its breach, unless it is complete and certain; and the rule applies as well to price as to subject-matter and parties.-Wineburgh v. Gay, 27 Cal. App. 603, 150 Pac. 1003.

§ 3391.

COMPELLING SPECIFIC PERFORMANCE. 1-4. As to pleading consideration. 5-7. Sufficiency of complaint.

8, 9. Burden of proof.

10-14. Determination as to what is a. 15. Where fraud, accident, surprise, or mistake intervenes.

1. As to pleading consideration.—Inadequacy of consideration is an independent and distinct ground for denying specific performance.-Haddock v. Knapp, 171 Cal. 59, 151 Pac. 1140.

2.

There must be an averment of the adequacy of the consideration in the pleading.— O'Hara v. Wattson, 172 Cal. 525, 157 Pac. 608.

3. It is not necessary in an action for specific performance that the complaint should declare in the very words of the code that there was "an adequate consideration for the contract" and that it was "just and reasonable"; the proper mode of pleading is to set forth the facts from which the court may conclude that the contract is supported by an adequate consideration and is, as to the defendants, fair and just.Magee v. Magee, 174 Cal., 162 Pac. 1023.

4. The adequacy of the consideration must be both pleaded and proved.-Colm v. Francis, 30 Cal. App. 742, 159 Pac. 237.

[blocks in formation]

of a contract to sell land, which contains no averment of facts showing the fairness of the contract or the adequacy of the consideration, fails to state a cause of action.McRae v. Ross, 170 Cal. 74, 148 Pac. 215.

[ocr errors]

6. Where the complaint does not allege, nor does the evidence show, that there was adequate consideration for the obligation sought to be enforced, or that the contract was just and reasonable as to the defendants, specific performance will not be granted.Ehrhart v. Mahony, 170 Cal. 148, 148 Pac. 934. 7. A decree of specific performance can not be supported in the absence of allegation and finding that the contract was just and reasonable and the consideration adequate.Gibbons v. Yosemite Lumber Co., 172 Cal. 714, 158 Pac. 196.

8. -Burden of proof.-The burden of alleging and proving the adequacy of the consideration is upon the party seeking the relief.-Haddock v. Knapp, 171 Cal. 59, 151 Pac. 1140.

9. A court of equity must deny specific performance when the proof shows inadequacy of consideration standing alone.— O'Hara v. Wattson, 172 Cal. 525, 157 Pac. 608. 10. Determination as to what is a.—In determining whether the consideration is adequate the court is not guided solely by a comparison of the price agreed to be paid with the value of the property to be conveyed. This is a factor, but it is to be viewed by the court in conjunction with all of the other facts and circumstances of the case. Haddock v. Knapp, 171 Cal. 59, 151 Pac. 1140.

11. It is not, however, necessary to the granting of the relief of specific performance that the value of the property to be conveyed, as found by the court, shall be exactly equal to the price agreed to be paid, as the law has not fixed any specific degree of percentage of variation between the value found and the agreed price which must exist in order to justify a denial of specific relief. In each case it is for the trial court to determine whether under all the circumstances the consideration is adequate and the contract fair and reasonable.-Haddock v. Knapp, 171 Cal. 59, 151 Pac. 1140.

12. A price which varies somewhat from the value found may be deemed adequate, if it has been fixed by the free agreement of the parties acting with full knowledge of all the conditions, and the contract is fair and just in other respects.-Haddock Knapp, 171 Cal. 59, 151 Pac. 1140.

V.

13. A determination of what is an adequate consideration is a question upon which the decision of the trial court must in a large matter control.-O'Hara v. Wattson, 172 Cal. 525, 157 Pac. 608.

14. The consideration must not necessarily be held inadequate unless the value of the property at the time of the contract, as the court finds it to be, exactly or even substantially equals the price fixed by the contract, as other circumstances, such as the relation of the parties, and their love, affec

tion, or regard for each other, as well as the object to be attained by the contract, may be given some effect.-O'Hara v. Wattson, 172 Cal. 525, 157 Pac. 608.

15. Where fraud, accident, surprise, or mistake intervenes.-In suits for specific performance, or indeed in any suit to enforce a contract or to recover for its breach, parol evidence may be admitted to show that by reason of fraud, accident, surprise, or mistake the contract does not truly present the actual agreement of the parties.-Hershey v. Los Angeles Pac. Co., 171 Cal. 353, 153 Pac. 230.

§ 3392.

1. Right to specific performance-Conditions precedent.-Before the right to specific performance may be asserted, the party invoking it must have performed or offered to perform on his part.-Cates v. McNeil, 169 Cal. 697, 147 Pac. 944.

2. Part performance sufficient to justify specific performance of such an agreement is not shown by the taking of possession of the property without also showing that the possession was known to the owner or that it was taken with her knowledge or consent, express or implied.-Fritz v. Mills, 170 Cal. 449, 150 Pac. 375.

§ 3399.

REFORMATION OF CONTRACT. 1-4. Complaint in action for.

5. Defenses.

6. Grounds of reformation.

7. Void contract can not be reformed.

1. Complaint in action for.-In an action for the reformation of a contract the complaint should allege what the real agreement was, what the agreement as reduced to writing was, and where the writing fails to embody the real agreement.-Auerbach v. Healy, 174 Cal. 60, 161 Pac. 1157.

2. If the complaint seeks the correction of a description of land, the pleading must describe the premises so as to render certain the location and boundaries.-Auerbach v. Healy, 174 Cal. 60, 161 Pac. 1157.

3. It is necessary to aver facts showing how the mistake was made, whose mistake it was, and what brought it about, so that the mutuality may appear; in this state mutuality is not always necessary, as it is sufficient if there was a mistake of one party, which the other at the time knew or suspected, but the facts showing a mistake of that character, in such a case, must likewise be alleged.-Auerbach v. Healy, 174 Cal. 60, 161 Pac. 1157.

4. A complaint in an action to reform a deed on the ground that it does not properly describe the premises intended to be conveyed is fatally defective where there is no allegation that the plaintiff has any title or interest in the property, or that the defendant has sold and agreed to convey the property to the plaintiff, or any allegation as to what the true description is, or that the mistake would be material if properly

alleged.-Auerbach v. Healy, 174 Cal. 60, 161 Pac. 1157.

5. Defenses.-In an action to recover damages for the refusal to make delivery of a specified amount of hops for the year 1911, where there had been similar contracts for 1910 and 1909 the defendants are entitled to defend the action on the theory that the three instruments constituted but a single contract and that a breach of one constituted a failure of consideration which would entitle the defendant to rescind the entire contract. While the defendants might have resorted to the remedy provided in this section they were not compelled to do so. If the instruments in law and in fact constituted but a single contract, the defendants were entitled to consider and declare the same rescinded and terminated upon the happening of a partial failure of consideration which resulted from the alleged wilful and wrongful failure of the plaintiffs to keep and perform an integral part of the entire contract.-Torrey v. Shea, 29 Cal. App. 313, 155 Pac. 820.

6. Grounds of reformation.-The grounds which will justify the reformation of a written contract are: First, fraud; second, a mutual mistake of the parties, and, third, a mistake of one party which the other at the time knew or suspected.-Kepner v. Marble, 26 Cal. App. 696, 148 Pac. 231.

7. Void contract can not be reformed.—A void agreement has no standing in the law, and can not be reformed nor enforced.Ainsworth v. Morrill, 31 Cal. App. 509, 160 Pac. 1089.

§ 3412.

1.

When deed will not be cancelled.—A deed of real property by a man to his wife is not subject to cancellation on the ground that she falsely represented prior to the marriage that she had been of good character.-Wilcox v. Wilcox, 171 Cal. 769, 155 Pac. 95.

[blocks in formation]

parent efficacy of the deed to pass title without qualification he may assert it in a proper action offensive or defensive. Where the defense is not apparent upon the face of the instrument it may be asserted precisely as might have been done if the document had not been burned. There is no distinction between public records and private instruments, the reason being the same in both cases. The owner of the destroyed instrument is entitled to be placed in a position in which he will not be compelled to establish his rights by secondary evidence.Shores v. Withers, 166 Cal. 403, 137 Pac. 7.

[blocks in formation]

2. —Subdivision 1.-This subdivision is more than declaratory. It establishes a rule and limits the right to issue injunctions as the right was before the adoption of the codes. It is a valid exercise of legislation defining the rights of persons, and operated to take away the right in certain cases.Reclamation Dist. v. Superior Court, 171 Cal. 672, 154 Pac. 845.

3. Merely enjoining the inequitable use of judgments obtained in a court is not within the meaning of staying a judicial proceeding.-Title Ins. & Trust Co. v. Cal. Devel. Co., 171 Cal. 173, 152 Pac. 542.

4. -Subdivision 4.-This is but the enunciation of an old and generally recognized rule of equity jurisdiction.-Reclamation Dist. v. Superior Court, 171 Cal. 672, 154 Pac. 845.

5. The provisions of this subdivision refer solely to injunctions against the execution of valid statutes.-Reclamation Dist. v. Superior Court, 171 Cal. 672, 154 Pac. 845.

6. The trustees of a reclamation district are officers of the law within the meaning of this section.-Reclamation Dist. v. Superior Court, 171 Cal. 672, 154 Pac. 845.

« ÀÌÀü°è¼Ó »