Opinion
Department Two
Appeal from a judgment of the Superior Court of Fresno County.
COUNSEL
A note or memorandum of the agreement is all that is necessary to be signed, and that only by the party sought to be charged. It was unnecessary, therefore, that it should have been signed by the plaintiff or his agent. (Vassault v. Edwards , 43 Cal. 459; Rutenberg v. Main , 47 Cal. 213; Pomeroy on Specific Performance, sec. 75; Scott v. Glenn , 87 Cal. 221.) It is evident from the admissions of the defendant himself that this was a speculation upon which he failed to realize according to his expectations, and which he now seeks to get out of. His subsequent actions constituted a waiver of all objections which might have been previously urged. It would be a fraud upon the vendor were it otherwise. (Pomeroy on Specific Performance, secs. 377, 381, 407, 418, 419; Scott v. Glenn , 87 Cal. 221; Rutenberg v. Main , 47 Cal. 213.) The execution and delivery of the deed to the agents to be delivered to the defendant before payment of the money agreed to be paid completed the sale on the plaintiff's part, and left nothing further for him to do. A verbal contract for the sale of land, under these circumstances, is enforceable. (Cannon v. Handley , 72 Cal. 133. See also Rutenberg v. Main , 47 Cal. 213.) The deed was a note or memorandum in writing of the contract, and was sufficient evidence to take the case out of the statute of frauds. (Cagger v. Lansing, 47 Barb. 421; Worrall v. Munn , 5 N.Y. 229; 55 Am. Dec. 330.) The purchaser having been familiar with the whole transaction, and having subsequently received a deed with the consideration stated, to which no objection was made, but only returned it with a request that it be made to another party, the maxim, Ut res magis valeat quam pereat, applies. (See Civ. Code, secs. 3399- 3402, 3533.) The defendant waived any objection which might have been urged against the memorandum of the contract, and is estopped by his own conduct from setting up any irregularity which might have existed. (Civ. Code, secs. 3513- 3516; Code Civ. Proc., sec. 1962, subd. 3, and notes; Scott v. Glenn , 87 Cal. 221.) The law does not require the tender of a deed where the vendee refuses to perform on his part before suit. (Pomeroy on Specific Performance, secs. 360, 361; Gray v. Dougherty , 25 Cal. 266-280.)
Meux & Edwards, and Thompson & King, for Appellant.
Edward Lynch, for Respondent.
The contract was not established as alleged in the complaint. (Magee v. McManus , 70 Cal. 556; Burnett v. Kullak , 76 Cal. 535; Breckinridge v. Crocker , 78 Cal. 535.) There was no agreement in writing to buy or sell, as no one is named in the alleged agreement as the owner of the land to be sold. (Civ. Code, sec. 1558; Grafton v. Cummings , 99 U.S. 106; Breckinridge v. Crocker , 78 Cal. 534-538.) A ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified, which would be, in this case, by a declaration in writing which would, in substance, recite the contract entered into and the approval thereof, signed by Meux; but as no such thing was done, there was no ratification of the agency or contract. (Civ. Code, sec. 2310.)
JUDGES: Belcher, C. Vanclief, C., and Fitzgerald, C., concurred.
OPINION
BELCHER, Judge
[27 P. 745] The plaintiff brought this action to enforce the specific performance of a contract to purchase from him certain lots of land in the city of Fresno.
The court below gave judgment for the defendant, from which the plaintiff has appealed, and has brought the case here on a bill of exceptions.
The principal question in the case is, whether an enforceable contract was made between the parties for the sale and purchase of the lots.
The material facts of the case, as shown by the record, are as follows: The plaintiff was residing in San Francisco, and was the owner of the lots; and prior to April 10, 1888, he had verbally authorized Rader & Bear, who were real estate agents at Fresno, to sell them.
On the day of its date, the defendant executed and delivered to Rader & Bear a paper reading as follows:
" Fresno, Cal., April 10, 1888.
" Received from S. L. Hogue and J. D. Power the sum of $ 100, in gold coin, being a deposit and part payment on account of bargain and sale made to them this day of a certain lot, tract, or parcel of land lying and being situate in the city of Fresno, county of Fresno, state of California, and bounded and described as follows, namely, lots 13, 14, 15, and 16, in block 77, said lots having been sold to them this day for the sum of $ 3,925, in gold coin, subject to the approval of the owner, the balance to be paid, $ 1,425 on delivery of deed and abstract, $ 1,000 six months, and $ 1,600 on one year from February 1, 1888, at ten per cent interest from date, or this deposit to be forfeited without recourse, title to prove good or no sale, and this deposit to be returned subject to approval of owner.
" We hereby agree to buy the property above described, upon the terms and conditions hereinbefore expressed.
" S. L. Hogue.
" J. D. Power,
" By S. L. H.
" Rader & Bear, Agents."
On the same day, the agents wrote to plaintiff, but did not send him a copy of the contract, nor does it appear that he ever saw the contract or a copy of it. The letter is as follows:
" Fresno, Cal., April 10, 1888." J. P. Meux, Esq., 240 Montgomery Street, San Francisco, Cal.
" Dear Sir, -- We have sold lots 13 to 16, inclusive, in block 77 of Parkhurst's addition, for four thousand dollars. Terms: Sixteen hundred dollars cash, one thousand dollars in six months, and sixteen hundred dollars in one year; interest ten per cent. This sale is made upon the terms left us by your brother, Dr. Meux. He preferred sixteen hundred dollars cash. Please send deed and abstract at once, as the purchaser is ready to take up the deed at once. Yours truly,
" Rader & Bear."
To this letter plaintiff replied, but the reply was not produced and put in evidence. Rader could only testify, as to its contents, that it "amounted to just a confirmation of the sale as it was made, on the terms," etc. And the plaintiff only said: "I wrote to Mr. Rader that I confirmed the sale that had been made; that I was satisfied with the sale of the property, and would give a deed to the parties."
Several other letters in reference to the matter subsequently passed between the plaintiff and his agents, but none of them were produced, nor were their contents shown.
Shortly after the receipt of the letter above set out, plaintiff sent to the agents a deed of the property. When this deed was shown to Hogue, he requested that it be sent back to plaintiff, and that he should make another deed to one Murray. The deed was sent back, and plaintiff made and forwarded another deed, in which Murray was named as grantee. This second deed, Rader testified, was tendered to Mr. Hogue; and he also said, "I don't know what has become of that deed; I don't think Mr. Hogue ever took the deed up. I suppose it afterwards fell back into the hands of Mr. Meux." Neither of the deeds above mentioned was produced or offered in evidence. Subsequently, a third deed was made, and of this the plaintiff testified: "I executed another deed, and again tendered him (Hogue) a deed. That was on the 9th of February, 1889. He declined to receive it, and he said that he would not take the property, and I waited some little while and filed this complaint against him." The deed was produced, and in it S. L. Hogue and J. D. Power were named as grantees, and the consideration expressed was four thousand dollars.
When the first deed was offered to Hogue, the agents stated that they would deliver it upon the payment of a certain amount of money, and the execution of notes and a mortgage for the balance.
The action was commenced against Hogue and Power; but upon Hogue's statements that he signed Power's name to the contract without any authority, the action was dismissed as to the latter.
Section 1741 of the Civil Code provides: "No agreement for the sale of real property, or of an interest therein, is valid, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent thereunto authorized in writing."
The agreement produced here was not subscribed by the seller, or by any agent authorized, in writing, to subscribe it, nor can it be ascertained therefrom who the seller was. It was probably not necessary that the seller sign the paper (Vassault v. Edwards , 43 Cal. 459; Pomeroy on Specific Performance, sec. 75); but it was made "subject to the approval of the owner," and it was necessary that he should know its contents and approve and ratify it before it could become binding upon either party.
It is claimed for appellant that he fully approved and ratified the sale, upon the terms named in the paper, by his letters to his agents and by the deeds which he executed and offered to the purchaser. But, as before stated, it is [27 P. 746] not shown by the record that he ever saw the written agreement or ever learned its terms, except from the letter above quoted.
Now, what were the terms of sale which the appellant approved and ratified? The agreement states that the property was sold for $ 3,925, and that the balance to be paid was $ 1,425 on delivery of deed, $ 1,000 in six months, and $ 1,600 on February 1, 1889, thus making the deferred payments aggregate $ 4,025. The letter states that the property was sold for four thousand dollars, to be paid as follows: Sixteen hundred dollars cash, one thousand dollars in six months, and sixteen hundred dollars in one year, thus making the payments aggregate four thousand two hundred dollars. And the complaint states that the property was sold for four thousand dollars, payable sixteen hundred dollars cash, one thousand dollars in six months, and fourteen hundred dollars on the first day of February, 1889. (At the conclusion of the trial, by consent of counsel and by leave of the court, the complaint was "considered amended on its face so as to conform to the contract of purchase and to the evidence." )
These terms are not the same, but materially different, and the ratification, if any, must have been of the terms stated in the letter, and not of those stated in the contract. But in order to constitute a valid contract, the minds of the contracting parties must meet and agree to the same thing.
" A court of equity will not specifically enforce any contract, unless it be complete and certain. This rule applies as well to parties as to price, subject-matter, etc.. .. It is essential to the validity of a contract that the parties should have consented to the same subject-matter in the same sense. They must have contracted ad idem. .. . Where there is a misunderstanding as to the terms of a contract, neither party is liable in law or equity. Where a contract is a unit, and left uncertain in one particular, the whole will be regarded as only inchoate, because the parties have not been ad idem, and therefore neither is bound. A proposal to accept or acceptance upon terms varying from those offered is a rejection of the offer." (See Breckinridge v. Crocker , 78 Cal. 529, and cases cited.)
We see nothing in the evidence to take the case out of the rule above stated, and we conclude, therefore, that the court below properly found that the plaintiff never authorized or ratified the contract of sale on which he relies.
We advise that the judgment be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the judgment is affirmed.