Johnson v. Lehtonen

DOOLING, J.

This appeal is taken from a decree of specific performance. By a written contract dated August 23,1954, appellant agreed to convey to respondent for a price of $8,500: “Portion of Lots Nos. 12 and 13, Block 114,

Crescent Park Subdivision” in the City of Palo Alto. The contract was signed for appellant: “Torsten R. Lehtonen by Jarl Lindfors, his attorney in Pact.”

It developed that the property in question was held in

[581]

joint tenancy by appellant and his wife and by the decree appellant is compelled to convey his undivided one-half interest therein for one-half of the purchase price, $4,250.

The appellant’s argument that Lindfors had no authority in writing to execute the contract is foreclosed by the admission in his answer. The complaint alleged: ‘ ‘ That. . . defendant, Thorsten [sic] E. Lehtonen, and the plaintiff did enter into that certain agreement, a copy of which is attached hereto, designated Exhibit ‘A,’ and by reference is made a part hereof.” A copy of the agreement was attached to the complaint marked “Exhibit A.” In the answer the truth of the above quoted allegation was expressly admitted. Having admitted that he executed the agreement appellant could not dispute this fact on the trial and his attempt to prove lack of written authority in Lindfors over objection that the fact was not in issue could not avail him, since he at no time asked leave to amend his answer in this respect.

There is no difficulty in enforcing the contract by specific performance as to the interest which appellant actually possessed. “ If the vendor has any interest in the property that he has contracted to convey, the vendee, at his option, may enforce the contract with respect to whatever interest the vendor possesses, and may also receive compensation for the deficiency in performance.”

(Miller

v.

Dyer,

20 Cal.2d 526, 529 [127 P.2d 901, 141 A.L.R. 1328] ;

Smiddy