페이지 이미지
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.

8 3336.

1. Damage for conversion-Mining stocks (subd. 1).—This measure of damages is applicable to mining stocks where they have been wrongfully converted.-Potts v. Paxton, 171 Cal. 493, 153 Pac. 957.

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.

§ 3334.

1. Damages for wrongful occupation of real property.-In an action for damages for the interference with an easement to a certain supply of water the measure of damages for cutting off the supply is properly measured by a reduction in the rental value of the dominant estate where it appears from the evidence that the diminution in the amount of the water was the sole reason for the reduction of the rent.-Cheda v. Bodkin, 173 Cal. 7, 158 Pac. 1025.

$ 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.

$ 3335.

1. Damages for wilful holding overConstruction.—Under this section sentimental value can not be recovered except as against one “having notice thereof or wilful wrongdoer" (Sloss, J., concurring).Willard v. Valley Gas & Fuel Co., 171 Cal. 9, 151 Pac. 286.

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

a

a

Tit.III,chs.III.) 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 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

8 3368. 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- 8 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 4. In an action by a seller for breach of

simply means that specific performance may contract to purchase a certain quantity of

be compelled in any case where the circum

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 the tender and rejection of the bottles is

jurisprudence, except as otherwise provided

herein.--Morrison v. Land, 169 Cal. 580, 147 admissible.-Lund v. Lachman, 29 Cal. App.

Pac. 259. 31, 154 Pac. 295.

2. 5. Where the case is tried upon the sug

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 the theory that the measure of plaintiff's

that specific performance will be decreed

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. 382, 155 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 § 3355.

erect thereon a suitable home for their

parents and furnish the same at his own 1. Property of peculiar value-Construction. — This section deals with property

cost and expense, is sufficiently certain and

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 8 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 en§ 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 depleading is to set forth the facts from which 8 3388.

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 bringing an action for specific performance of

$ 3390. 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 8 3387.

its oversight and management.-Crane v. SPECIFIC PERFORMANCE

Roach, 29 Cal. App. 584, 156 Pac. 375.
PRESUMPTION.

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 personalty.—The presumption that a breach of an

to subject-matter and parties.-Wineburgh

v. Gay, 27 Cal. App. 603, 150 Pac. 1003 agreement to transfer personal property be adequately relieved by pecuniary

8 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,

1. 141 Pac. 623.

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 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

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

can

of a contract to sell land, which contains tion, or regard for each other, as well as the no averment of facts showing the fairness object to be attained by the contract, may of the contract or the adequacy of the con- be given some effect.— O'Hara v. Wattson, sideration, fails to state a cause of action.- 172 Cal. 525, 157 Pac. 608. McRae v. Ross, 170 Cal. 74, 148 Pac. 215.

15. Where fraud, accident, surprise, or 6. Where the complaint does not allege,

mistake intervenes.In suits for specific nor does the evidence show, that there was performance, or indeed in any suit to enforce adequate consideration for the obligation a contract or to recover for its breach, parol sought to be enforced, or that the contract evidence may be admitted to show that by was just and reasonable as to the defendants, reason of fraud, accident, surprise, or misspecific performance will not be granted.- take the contract does not truly present the Ehrhart v. Mahony, 170 Cal. 148, 148 Pac. actual agreement of the parties.—Hershey 934.

v. Los Angeles Pac. Co., 171 Cal. 353, 153 7. A decree of specific performance can

Pac. 230. not be supported in the absence of allegation and finding that the contract was just and

$ 3392. reasonable and the consideration adequate.- 1. Right to specific performance-CondiGibbons v. Yosemite Lumber Co., 172 Cal. tions precedent.—Before the right to specific 714, 158 Pac. 196.

performance may be asserted, the party in8. -Burden of proof.-The burden of al- voking it must have performed or offered leging and proving the adequacy of the con- to perform on his part.-Cates v. McNeil, 169 sideration is upon the party seeking the Cal. 697, 147 Pac. 944. relief.—Haddock v. Knapp, 171 Cal. 59, 151 2. Part performance sufficient to justify Pac. 1140.

specific performance of such an agreement 9. A court of equity must deny specific is not shown by the taking of possession of performance when the proof shows inade- the property without also showing that the quacy of consideration standing alone.- possession was known to the owner or that O'Hara v. Wattson, 172 Cal. 525, 157 Pac. 608. it was taken with her knowledge or consent,

10. Determination as to what is a.-In express or implied.--Fritz v. Mills, 170 Cal. determining whether the consideration is 449, 150 Pac. 375. adequate the court is not guided solely by a comparison of the price agreed to be paid 8 3399. with the value of the property to be con

REFORMATION OF CONTRACT. veyed. This is a factor, but it is to be viewed by the court in conjunction with all

1-4. Complaint in action for.

5. Defenses. of the other facts and circumstances of the

6. Grounds of reformation. case.—Haddock v. Knapp, 171 Cal. 59, 151 Pac. 1140.

7. Void contract can not be reformed. 11. It is not, however, necessary to the 1. Complaint in action for.-In an action granting of the relief of specific perform- for the reformation of a contract the comance that the value of the property to be plaint should allege what the real agreeconveyed, as found by the court, shall be ment was, what the agreement as reduced to exactly equal to the price agreed to be paid, writing was, and where the writing fails to as the law has not fixed any specific degree embody the real agreement.-Auerbach v. of percentage of variation between the value Healy, 174 Cal. 60, 161 Pac. 1157. found and the agreed price which must exist 2. If the complaint seeks the correction in order to justify a denial of specific relief. of a description of land, the pleading must In each case it is for the trial court to describe the premises so as to render certain determine whether under all the circum- the location and boundaries.-Auerbach v. stances the consideration is adequate and Healy, 174 Cal. 60, 161 Pac. 1157. the contract fair and reasonable.-Haddock 3.

It is necessary to aver facts showing v. Knapp, 171 Cal. 59, 151 Pac. 1140.

how the mistake was made, whose mistake 12. A price which varies somewhat from it was, and what brought it about, so that the value found may be deemed adequate, the mutuality may appear; in this state muif it has been fixed by the free agreement of tuality is not always necessary, as it is suffithe parties acting with full knowledge of cient if there was a mistake of one party, all the conditions, and the contract is fair which the other at the time knew or susand just in other respects.-Haddock v. pected, but the facts showing a mistake of Knapp, 171 Cal. 59, 151 Pac. 1140.

that character, in such a case, must likewise 13. A determination of what is an ade- be alleged.--Auerbach v. Healy, 174 Cal. 60, quate consideration is a question upon which 161 Pac. 1157. the decision of the trial court must in a 4. A complaint in an action to reform a large matter control.-O'Hara v. Wattson, deed on the ground that it does not properly 172 Cal. 525, 157 Pac. 608.

describe the premises intended to be con14. The consideration must not necessa- veyed is fatally defective where there is no rily be held inadequate unless the value of allegation that the plaintiff has any title the property at the time of the contract, as or interest in the property, or that the dethe court finds it to be, exactly or even sub- fendant has sold and agreed to convey the stantially equals the price fixed by the con- property to the plaintiff, or any allegation tract, as other circumstances, such as the as to what the true description is, or that relation of the parties, and their love, affec- the mistake would be material if properly

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.

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.

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.

Veid 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.

8 3423.

INJUNCTION. 1. Construction of section-In general. 2, 3. -Subdivision 1. 4-6. --Subdivision 4.

more

1. Construction of section-In general.Section 3423 of the Civil Code can hardly be said to be applicable where the action or proceeding has terminated in a final judgment. Unless this were so, the recognized right of the courts in this state to enjoin the inequitable use of judgments would be greatly restricted.—Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 173, 152 Pac. 542. 2. -Subdivision 1.-This subdivision is

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.

8 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.

8 3415.

1. Reissuance of lost, etc., documentConstruction.—The sole object of proceedIngs hereunder is to restore the record. Other matters have no place in the controversy. If the plaintiffs are entitled to be placed in exactly the position which was occupied by their predecessor in interest, then the deed should be restored and delivered to them as ordered by the court. If the defendant has some defense to the ap

« 이전계속 »