Kingston v. Colburn

PEEK, J.

Plaintiffs sought to recover rent alleged to be due under a written lease for a term of five years at a monthly rental of $125. Defendants’ answer denied the existence of a lease and affirmatively pleaded the statute of frauds. At the conclusion of the trial judgment was entered in favor of defendants, and plaintiffs appeal.

Prom the record before us it appears that the lease which was introduced in evidence by plaintiffs was entirely devoid of any description of the real property; that plaintiffs sought to introduce parol evidence to supply the missing description; and that defendants objected thereto on the ground that it violated the parol evidence rule and was in conflict with the statute of frauds, which objection was sustained. No attempt was made by plaintiffs to seek reformation of the agreement.

It is plaintiffs’ first contention that the court erred in refusing to admit parol evidence to supply the missing description. It has long been the rule that to satisfy the statute of frauds, the writing “must so describe the land that it can be identified with reasonable certainty.” Also the description fulfills the test if “it furnishes the ‘means or key’ by which the description may be made certain ...”

(Beverage

v.

Canton Placer Min. Co.,

43 Cal.2d 769, 774 [278 P.2d 694].) But where, as here, the writing is devoid of even “the means or key,” parol evidence may not be used to “supply the necessary description and then apply the description supplied by parol evidence to a particular portion of the earth’s surface.”

(Gordon

v.

Perkins,

108 Cal.App. 336, 342 [291 P. 644].)

Plaintiffs’ second contention is essentially that even in the absence of appropriate pleadings to that effect, the court should have reformed the lease upon the ground of mutual mistake. The question so raised also finds answer in the Beverage case where the court held that, “Since the complaint contained no supplementary allegations in aid of the defective description, it furnished the court with no basis for ruling on the admissibility of evidence offered to identify the property the parties had in mind.” (43 Cal.2d 769, 775.)

The final contention of plaintiffs is that since defendants went into possession and paid rent during’ their possession, they were estopped to set up the defense of the statute of