Burnand v. Nowell

YORK, P. J.

The original complaint herein sought a money judgment for $5,250 on account of an alleged deficiency in the area of land sold by defendants to the plaintiffs. Defendants answered and pleaded three special defenses. At the beginning of the trial after plaintiffs’ first witness was sworn, the court sustained defendants’ objection to the introduction of evidence on the ground that the complaint did not state a cause of action, and granted plaintiffs leave to amend their complaint. Accordingly plaintiffs filed an amended complaint seeking reformation of an option agreement and of both the buyers’ and sellers’ escrow instructions, constituting the agreement of sale and purchase herein, and also sought a judgment for $5,250 on account of an alleged deficiency in the area of the lands described in these three documents.

When the cause came on for further hearing upon the amended complaint and the answer thereto, defendants renewed their objection to the introduction of evidence on the ground that such amended complaint did not state a cause of action, and moved for a judgment on the pleadings, which motion was granted.

Plaintiffs have perfected this appeal from such judgment. It is well settled that where judgment has been rendered for defendants on the pleadings, “the sole question is whether the complaint states a cause of action; that in passing upon such motion for judgment on the pleadings nothing may be considered but the complaint itself. Nothing dehors the complaint, nor any defense thereto set up in the answer, can be taken into account in disposing of such a motion. The truth of the allegations contained in the complaint must be assumed and, if the pleading alleges ultimate facts which disclose the existence of a cause of action in favor of the plaintiff, then the motion for judgment on the pleadings must

[3]

be denied.”

(North Side etc. Assn.

v.

Hillside etc. Park,

70 Cal.App.2d 609, 613 [161 P.2d 618].)

The amended complaint herein alleges that defendants, as owners of the West one-half of section 15, and the Southeast one-quarter of section 21, Township 10 South, Range 6 East, S.B.B.M., situate in San Diego County, entered into an agreement with Harry Woods, who was acting as agent for the plaintiffs, whereby defendants gave to said Woods an option to purchase said property at $50 per acre; that said agreement was reduced to writing but through mutual mistake of the parties thereto said agreement did not truly express their intention in that they assumed that said property consisted of 480 acres and computed the purchase price upon such mistaken assumption, the total purchase price being stated in said agreement as $24,000; that on January 1, 1945, said Woods assigned his interest in said agreement to plaintiffs, who thereupon exercised the option therein contained and on January 29, 1945, entered into a written agreement whereby “plaintiffs agreed to purchase, and defendants agreed to sell, the real property hereinabove described for a purchase price of Fifty ($50.00) Dollars per acre”; that said agreement of purchase and sale was in the form of buyers’ and sellers’ escrow instructions executed by plaintiffs and defendants respectively and deposited with the escrow holder, and provided for a total purchase price of $24,000, payable $10,000 in cash and a purchase money trust deed for $14,000; that said real property was described in both documents as the “W% of See. 15, T 10 S, R 6 E,