Thus, insofar as plaintiff's deposition and answers to interrogatories contained admissions, they should have been admitted in evidence. ( Dini v. Dini, 188 Cal.App.2d 506, 512 [ 10 Cal.Rptr. 570]; Murry v. Manley, 170 Cal.App.2d 364, 367 [ 338 P.2d 976].) [4] As stated in the two cited cases, an adverse party's deposition "may be used to establish any material fact, a prima facie case, or even to prove the whole case."

(1b) The purpose of the within constructive trust action is to enforce an oral contract to devise property, in equity, by quasi-specific performance. (See Dini v. Dini (1961) 188 Cal.App.2d 506, 513 [ 10 Cal.Rptr. 570].) (3) "The relief which may be granted in an action for quasi-specific performance of a contract to bequeath or devise property is the imposition of a constructive trust upon the property in favor of the promisee-plaintiff.

California cases, including those cited by Plaintiff, make clear that § 3302 is a measure of damages. See Dini v. Dini, 188 Cal. App. 2d 506, 511 (1961) ("The measure of damages is that provided in section 3302, Civil Code"); Reichert v. General Ins. Co., 68 Cal. 2d 822, 852 (1968) (Peters, J., dissenting) ("section 3302 of the Civil Code should not be construed as establishing the exclusive measure of damages for breach of an obligation to pay money or to limit the damages recoverable under section 3300 of that code") (emphasis added); Budget Finance Plan v. Sav-On Food Club, Inc., 44 cal. 2d 565, 572, n. 6 (1955) (explaining that per § 3302, "[w]here there is no express contract covering the matter, the law awards interest on money from the time it becomes due and payable if such time is certain or can be made certain by calculation"). Plaintiff cites no authority - and the Court could not find any - that suggests § 3302 creates a cause of action, rather than limiting the amount of damages available for certain types of claims.

But all but four of those cases involved oral contracts to make a will (or to devise property in a will) or contracts not to be performed during the lifetime of the promisor. (See, e.g., Day v. Greene (1963) 59 Cal.2d 404, 406, 29 Cal.Rptr. 785, 380 P.2d 385 [contract to devise property in will]; Di Salvo v. Bank of America (1969) 274 Cal.App.2d 351, 353, 78 Cal.Rptr. 838 [contract to make a will]; Dini v. Dini (1961) 188 Cal.App.2d 506, 513, 10 Cal.Rptr. 570 [contract not to be performed during promisor’s lifetime]; Palmer v. Phillips (1954) 123 Cal.App.2d 291, 292, 266 P.2d 850 [contract to make a will]; Jirschik v. Farmers & Merch. Nat. Bank (1951) 107 Cal.App.2d 405, 237 P.2d 49 [contract to devise property in a will]; Walker v. Calloway (1950) 99 Cal.App.2d 675, 676, 222 P.2d 455 [contract to devise property in will]; Baker v. Bouchard (1932) 122 Cal.App. 708, 709, 10 P.2d 468 [contract to devise property in a will].) Those contracts, which fall under different contract categories in the statute of frauds, are treated differently than contracts that fall under subdivision (a)(1) of section 1624.

Unconscionable injury requires "unusual, even extraordinary, circumstances demonstrating that unless the agreement is carried out, unconscionable injury would result to the party asserting the agreement." (Dini v. Dini (1961) 188 Cal.App.2d 506, 514.) The allegation that Kaiser lost the opportunity to sell the property when the real estate market was relatively strong does not amount to a change of position on the part of Kaiser. (Carlson v. Richardson (1968) 267 Cal.App.2d 204, 208.)

The authorities he cites in support of this contention are inapplicable for the reasons respondents argue. For example, citing Dini v. Dini (1961) 188 Cal.App.2d 506, Henry says damages for breach of an agreement to buy or sell property normally subject to valuation may nevertheless be fixed if the agreement specifies the value. However, as already explained, unlike the facts in the Dini case, Henry did not establish that the agreement specified the valuation upon breach.

The interrogatories and the deposition should have been received in evidence. (Code Civ.Proc. § 2016(d)(2); Dini v. Dini, 188 Cal.App.2d 506, 10 Cal.Rptr. 570; Murry v. Manley, 170 Cal.App.2d 364, 338 P.2d 976.) The error, however, was not prejudicial.