Brudvig v. Renner

DRAPER, J.

Decree of specific performance of a contract for sale of real estate directs defendant owner to convey described land to plaintiff buyer. Defendant appeals.

As is the case with so many such disputes, the agreement of sale was drawn by a real estate salesman. It describes the property as:

“2-acres more or less, with New Home, located at 4053 Braneiforte Drive, Santa Cruz, California; legally known as Dr. J. H. Renner property.”

There would be no uncertainty if this description covered all the land owned by defendant at that location

(Towle

v.

Carmelo L. & C. Co.,

99 Cal. 397 [33 P. 1126]), or all the property known as 4053 Branciforte Drive

(Finn

v.

Goldstein,

201 Cal. 605 [258 P.

85]; Burnett

v.

Kullak,

76 Cal. 535 [18 P. 401]).

But it is admitted that the contract dealt only with a portion of defendant’s land. The complaint sets out a metes and bounds description of exactly 2 acres—coneededly less t.ba.-n the area owned and occupied by Renner. Defendant owned 18 acres which he had fully occupied for some time. Shortly before this contract, he had agreed to sell some 15 acres to another, but he still retained both legal and equitable title to about 3 acres. Plaintiff testified that he desired to buy, and

[524]

negotiated for, exactly 2 acres. He asked deletion of the “more or less” phrase, hut was told by the salesman that it meant only a minor variation, and was commonly included in such contracts “to keep it from going into Court.” Defendant’s answer alleges that plaintiff is entitled only to land described therein, consisting of only 0.94 acre. Thus neither the pleadings nor the evidence permit construing the contract to cover the entire Renner land.