Opinion
Rehearing Denied Aug. 7, 1930
Hearing Granted by Supreme Court Sept. 4, 1930.
Appeal from Superior Court, Los Angeles county; John L. Fleming, Judge.
Action by Jefferson Walbridge against R.D. Richards and others. From a judgment for defendants, plaintiff appeals.
Affirmed. COUNSEL
R.T. Walters, of Los Angeles, for appellant.
Charles D. Swanner, of Santa Ana, for respondents.
OPINION
GATES, Justice pro tem.
Appellant sought to obtain a judgment against respondents for the sum of $1,000 with interest, alleged to be due on account of money had and received. The complaint, which is in the usual form, alleges that $1,000 was received by respondents for the use of appellant, and that respondents, upon demand, failed, neglected, and refused to pay the above sum or any part thereof. Respondents by their second amended answer deny that they or either of them received the sum of $1,000 for the use of plaintiff, and as an affirmative defense allege that the appellant paid one of respondents $1,000 as a deposit on certain real estate, at the time of which payment a receipt or memorandum was given; that there was then no map of the tract sought to be sold of record in the office of the county recorder of Los Angeles county; that appellant well knew such fact at the time and entered into the memorandum with full understanding that the map had not then been so recorded, and, if not so recorded, that the real property was to be described by metes and bounds.
At the trial the facts were agreed upon in open court by oral stipulation. The court entered its findings of fact and conclusions of law, and judgment was given in favor of respondents. From that judgment this appeal is taken.
Appellant and one of the respondents, Richards, made and executed the following document:
"Date Jan 19th 1924
"Received of Jefferson Walbridge *** $1000.00 as a deposit on Lot 1 and 2 Blk A. of Tract known as West Whittier Orchard Park, as delineated on Sales Map, which purchaser has seen and approved, to be known as Lots 1-2 Blk A Tract 7763, as per official map, when, as, and if same is recorded, otherwise to be described by metes and bounds. Total purchase price to be $15,000.00, together with interest on deferred payments at the rate of 7% per annum, payable semi-annually, $2000 additional to be paid on or before April 1st 1924 or within 5 days after notice that contract is ready, balance in 10 quarterly equal installments commencing three months after date of contract. Sellers agree to grade, oil and gravel all streets and to construct sidewalks and curbs along front line of all lots, and to install water and gas mains throughout Tract.
Jefferson Walbridge Purchaser.
"By _________, Agent.
"Sign in triplicate, one for buyer, one for trustee and one for agent.
"Approved R.D. Richards
"__________,
"__________,
"Trustees
"Contract to bear date of April 1st, 1924 Interest to begin on that date. 5ELLING COMMISSION TO BE ALLOWED FROM SECOND PAYMENT."
It appears from the stipulation that appellant went to the office of respondents on Whittier boulevard, in the county of Los Angeles, and, after examining the property in question personally, respondents showed him on their sales map certain lots 1 and 2 of block A of the tract known as West Whittier Orchard Park, which was at that time an unrecorded map— that was tract No. 7763— and thereupon appellant, after going over the property with R.D. Richards, one of the respondents and a trustee of the West Whittier Orchard Park tract, paid to said Richards the sum of $1,000 cash, at which time Richards gave him the receipt heretofore set forth. On May 26, 1924, the map of said tract No. 7763, known as the West Whittier Orchard Park tract, was recorded with the county recorder of Los Angeles county. Subsequent to the execution of the contract respondent Richards notified the appellant that his contract for the purchase of the real property was ready for signature, in accordance with the terms of the receipt, and that the contracts were at the office of the West Whittier Orchard Park. On May 29, 1924, appellant notified Richards in writing that he demanded the return of the $1,000 held by him, offering to return the original receipt. It was further stipulated that at the time the $1,000 was paid and the receipt executed therefor appellant understood by the terms of the receipt, and acknowledged that he understood, that the map of said tract had not at that time been recorded in the office of the county recorder of Los Angeles county. It was further stipulated that the piece of property described in the receipt is the identical lot and piece of property that was personally examined by appellant just prior to the payment of the sum sued for and the execution of the receipt, and further that appellant did not pay or tender to the defendants, or either of them, $2,000 or any other sum. No part of the $1,000 has been repaid to appellant.
The first contention made by appellant is that the document of January 19 is not of itself sufficient to constitute a contract of sale of real estate; that it is a receipt for $1,000 for a contract to be thereafter entered into. In support of this proposition he cites Holman v. Musser, 59 Cal.App. 734, 739, 212 P. 33. That case does not sustain his contention for the reason that there the court held that, where parties had agreed to later execute a formal final agreement, and that, if the final agreement was not executed and if the preliminary agreement was sufficient, the latter was binding on the parties and they are bound by the terms thereof as construed by the court. Nor does Levin v. Saroff, 54 Cal.App. 285, 201 P. 961, 963, aid appellant. In that case the District Court of Appeal, in referring to an agreement to execute a formal lease, among other things, stated: "Whether an instrument is a lease in presenti or an agreement to execute a lease in future is largely a question of the intention of the parties. *** Nevertheless, where the parties have agreed upon all essential facts there is a binding contract, notwithstanding the fact that a more formal contract is to be prepared and signed later. *** The mere fact that a written lease was in contemplation does not relieve either of the contracting parties from the responsibility of a contract which was already expressed in writing. When one party refuses to execute the lease according to the contract thus made, the other has a right to fall back on the written propositions as originally made, and the absence of the formal agreement contemplated is not material." Nor does the fact that the writing provides that there shall be a formal contract, which was not executed, invalidate it. Sautter v. Rowland, 285 Pa. 212, 131 A. 733. It is therefore clear that a contract which calls for a formal agreement, if it has all of the essentials of a valid contract, may be enforced in the absence of the formal agreement. Holman v. Musser, supra; Levin v. Saroff, supra. The document need be in no prescribed form. Breckenridge v. Crocker, 78 Cal. 529, 534, 21 P. 179. Nor is the name by which the parties choose to designate the agreement of any great consequence. 25 Cal.Jur. 467.
Is the writing in question, although in the form of a receipt, in fact a preliminary agreement for the purchase of real property? It is well settled that an agreement may be in the form of a receipt. Honore v. Lemm, 181 Cal. 420, 421, 184 P. 664; Keller et al. v. Orr et al., 106 Ind. 406, 7 N.E. 195; Thompson v. Williams, 30 Kan. 114, 1 P. 47, 48; Cummings v. Baars, 36 Minn. 350, 31 N.W. 449; Fordice v. Scribner, 108 Ind. 85, 9 N.E. 122. In Samworth v. Hudson (Tex.Civ.App) 234 S.W. 423, 424, the court said: "The instrument signed by Samworth, though in the form of a receipt, was a contract between the parties expressing in writing the terms upon which the minds of the parties met. Brackenridge v. Claridge & Payne, 91 Tex. 527, 44 S.W. 819, 43 L.R.A. 593." The Supreme Court, Appellate Term, in May Co. v. Breslin, 127 Misc. 327, 215 N.Y.S. 709, held a receipt setting forth the terms of the transaction, reciting receipt of deposit, stating price, terms, and description of property and signed by the parties, to be a binding contract.
In the instant case, therefore, in the absence of a formal written agreement which the parties contemplated but never executed, it must be held that the writing of January 19 is controlling as to the rights of the respective parties herein.
The contention of respondents at the trial that the writing was an option cannot be sustained. In Laack et al. v. Dimmick, 95 Cal.App. 456, 273 P. 50, 55, the court in passing upon a sales deposit slip said: "The sales deposit receipt contained an indorsement, signed by the purchaser, by which he agreed to all the conditions therein contained. It was a binding agreement of sale and was not in any sense a mere option to buy."
Appellant, relying upon the Holman v. Musser decision, contends that respondents showed no right to forfeit the $1,000, nor did they show that that sum represented their actual damages. The case cited does not help him, for the reason that the court in that matter found that there was no refusal on the part of the plaintiff to go forward with his part of the agreement. In the instant case it is clear that appellant had refused to perform and did not offer to perform pursuant to the terms of the preliminary agreement. A vendee who, without breach on the part of the vendor, refuses to perform a contract for the purchase of real estate, cannot recover from the vendor either the amount paid on the purchase price or a deposit by him as earnest money or as a forfeiture, the vendor being ready, able, and willing to perform upon his part. 25 Cal.Jur. 797; Oursler v. Thacher, 152 Cal. 739, 93 P. 1007; Nourse v. Azvedo, 185 Cal. 47, 195 P. 669; Hoppin v. Munsey, 185 Cal. 678, 198 P. 398; Catterline v. Peterson, 60 Cal.App. 617, 213 P. 515; Newhall Land & Farming Co. v. Burns, 31 Cal.App. 549, 161 P. 14.
Is the preliminary agreement of January 19th void because it is violative of Act 4574 (Stats.1907, p. 290, as amended), Deering’s General Laws 1925? That act requires the preparation and recording of maps and plats of lands laid out into lots for purposes of sale. Section 8 is as follows: "No person shall sell or offer for sale any lot or parcel of land, by reference to any map or plat, unless such map or plat has been made, certified, indorsed, acknowledged and filed in all respects as provided in this act, or was filed or recorded prior to the taking effect of this act and in accordance with the laws in force at the time it was so filed or recorded, and no person shall sell or offer for sale any lot or parcel of land by reference to any map or plat other than such recorded map or plat or true and correct copy thereof." The next section (section 9) provides: "Every person who violates any of the provisions of this act is guilty of a misdemeanor. ***" It has been repeatedly held that an agreement violative of this section is void. King v. Johnson, 30 Cal.App. 63, 157 P. 531; Smith v. Bach, 183 Cal. 259, 191 P. 14; Young v. Laguna Land & Water Co., 53 Cal.App. 178, 199 P. 810; Smith v. Bach, 54 Cal.App. 236, 201 P. 611; Hartzell v. Doolittle, 205 Cal. 17, 269 P. 527; Krause v. Marine Trust & Savings Bank, 93 Cal.App. 681, 270 P. 246; White v. Jacobs, 204 Cal. 334, 267 P. 1087; Shortell v. Evans-Ferguson Corp. (Cal.App.) 277 P. 519. It has been held that, even though the plaintiff, who was seeking to recover money paid on account of such illegal and void transaction, knew that the map referred to therein was unrecorded, the fact constituted no defense to a recovery. Smith v. Bach, 54 Cal.App. 236, 201 P. 611; White v. Jacobs, supra; Shortell v. Evans-Ferguson Corp., supra. It is well settled that a vendee who has purchased property under a contract of sale made in violation of Statutes 1907, p. 290, may recover the money paid on the contract. Smith v. Bach, supra; White v. Jacobs, supra; Hartzell v. Doolittle, supra; Krause v. Marine Trust & Savings Bank, supra; Letteau v. Dumas (Cal.App.) 278 P. 459.
Appellant claims that the writing of January 19th, if it is to be construed a contract, is violative of Statutes 1907, p. 290, for the reason that it refers to an unrecorded map. That portion of the writing which appellant contends refers to an unrecorded map is as follows: "*** And delineated on Sales Map, which purchaser has seen and approved, to be known as Lots 1-2 Blk A Tract 7763, as per official map, when, as and if same is recorded, otherwise to be described by metes and bounds." The court found that at the time the writing was entered into and the $1,000 paid there was no map of the West Whittier Orchard Park of record in the office of the county recorder of Los Angeles county, and that appellant well knew such fact at the time he made the payment and signed the agreement; and that, if the map was not so recorded when the contract was entered into, the real property was to be described by metes and bounds as set forth in the memorandum of agreement. On May 26, 1924, a map of tract No. 7763, known as West Whittier Orchard Park, was duly recorded in the office of the county recorder of Los Angeles county. The court further found that the parcel of land agreed to be sold by defendants to plaintiff is the identical lot and piece of property which the plaintiff understood he was buying and upon which he made a payment of $1,000 to the respondent Richards; that it was not intended by the parties, or any or either of them, that the map should be relied upon for a description of the said parcel of real property, but, on the contrary, said real property was purchased by plaintiff after he had personally examined the same on the ground, and the reference in the memorandum of agreement to said unrecorded map was for the purpose of identifying the property, and the contract thereafter to be entered into was, under the terms of the agreement, to be described by metes and bounds, in the event the map of West Whittier Orchard Park had not on that date been recorded.
Respondents, in support of the judgment and in answer to appellant’s contention that the agreement is void, rely upon the case of Security Investment Co. v. Bartram, 54 Cal.App. 540, 202 P. 337. That was a case wherein plaintiff sued to recover upon a contract for installments due. One of defendant’s defenses was that the contract sued upon was void because it referred to an unrecorded map. The court said: The contract is sufficient even if the map be entirely omitted from consideration. The finding in this regard is: ‘That at the time of the entering into said contract for the sale of said lot 5, there was no map of said block C of Polytechnic Square subdivision of record in the office of the county recorder of San Bernardino county, but defendants well knew such fact, at the time of so entering into said contract, and said defendants agreed to purchase said lot and entered into said contract with the full understanding that said map had not then been so recorded. That on the 19th day of August, 1919, said map of said block C of said Polytechnic Square subdivision was recorded in the office of the county recorder of San Bernardino county, and is now of record therein.’ From this it is clear that the only purpose of the parties in mentioning a map in the contract was to make provision for one to be on record not later than at the date when the purchasers should be entitled to a conveyance. It was not intended that the map should be relied upon for a description of the lot. Indeed this was unnecessary. The parties located the property purchased on the ground, and the contract described it by lot, tract, etc. Upon trial, it only remained to establish by parol that this description was of the parcel thus identified upon the ground."
Appellant contends that the principle set forth in Security Investment Co. v. Bartram, supra, is in conflict with the rule announced in Smith v. Bach, supra. In the instant case it would seem from a reading of the writing of January 19 that there is a reference to an unrecorded map as a sales map. That reference is made to lots 1 and 2, block A, of tract known as West Whittier Orchard Park Tract, as delineated on sales map, which purchaser "has seen and approved," to be known as lots 1 and 2, block A, of tract 7763. In other words, appellant made a deposit on certain lots in a certain tract, as described on a sales map, which lots purchaser has seen and approved. If the reference to the sales map had been omitted, would this agreement have been complete? We think so, because there would then be no sale by reference to any unrecorded map. The writing itself showed that these lots were "to be known as Lots 1 and 2, Block A, of Tract 7763, as per official map, when, as and if same is recorded, otherwise to be described by metes and bounds." In other words, if the proposed map was not filed, then the property was to be described by metes and bounds. Was the sale by reference to this unrecorded map? The word "reference" is defined in Webster’s New International Dictionary as follows: "Act of referring, or state of being referred; as reference to a chart." Was the act of referring to the unrecorded map the primary or proximate cause of the execution of the contract of sale? Did this unrecorded map play any part in the contract of sale? It did not, for the reason that the trial court specifically found "that it was not intended by said parties or either of them that the said map should be relied upon for a description of the parcel of real property, but on the contrary said real property was purchased by said plaintiff after he had personally examined same on the ground, and the reference in said memorandum of agreement to said unrecorded map was for the purpose of identifying the property, and the contract thereafter to be entered into was, under the terms of said memorandum of agreement, to be described by metes and bounds, in the event said map of West Whittier Orchard Park Tract had not on that date been recorded in the office of the County Recorder of Los Angeles County, State of California." The evidence supports this finding. The effect thereof can only be that the court found that the sale was not made by reference to the map. Baines v. Shank, 12 Cal.App. 391, 393, 107 P. 631. The conclusion of the trial court that the sale was not by reference to an unrecorded map must be sustained. There is nothing in Smith v. Bach, 54 Cal.App. 236, 201 P. 611, or in Smith v. Bach, 183 Cal. 259, 191 P. 14, nor in the White Case, that conflicts with the case of Security, etc., Co. v. Bartram, supra. What we have heretofore said clearly shows the distinction between the Bartram Case and the Smith v. Bach cases.
Appellant’s next point is that the findings are not sustained by the evidence. The stipulation of facts upon which the trial court made the findings is amply sufficient to uphold the findings of fact. Indeed, findings are unnecessary in a stipulated case, the stipulation standing as unattacked findings. 24 Cal.Jur., p. 953. While it is true that no evidence was introduced to apply the description of the lots to the subject-matter of the transaction, this was unnecessary, as it was stipulated by the parties that the piece of property described in the receipt referred to was the identical lot and piece of property that was personally examined by the appellant just prior to the payment of the sum and the execution of the writing. Nor is there anything to indicate that appellant, if he had paid the full sum called for by the agreement, would not have gotten the property bargained for. It is well settled that, if a description of land contained in a contract is indefinite, extrinsic evidence under appropriate pleadings is admissible to identify the property intended. 23 Cal.Jur., p. 436. The stipulation in the present case supplied that evidence.
Appellant further contends that the writing entered into by the parties does not comply with the statute of frauds (Civ.Code, § 1624 subd. 5; Code Civ.Proc. § 1973, subd. 5). He maintains that there is no contractual obligation set forth in the writing. His point is untenable, for the reason that it appears that all of the essentials of a valid agreement are present in the writing (12 Cal.Jur. p. 908), and it is signed by the party to be charged. It is well settled that a memorandum need take no particular form. 12 Cal.Jur. p. 900. The other points advanced by appellant in this connection need no discussion, as they are all answered by what we have heretofore said.
Judgment affirmed.
We concur: WORKS, P.J.; IRA F. THOMPSON, J.