J. J. Howell & Associates, Inc. v. Antonini

MUSSELL, J.

This is an action for specific performance of a contract to convey real property, to quiet title and for damages. The trial court ordered defendant to convey the property to plaintiff, quieted plaintiff’s title thereto and denied its claim for damages. Defendant contends on his appeal from the judgment that the complaint does not state a cause of action for specific performance; that the evidence is insufficient as a matter of law to support the judgment and that it should he reversed for the reason that the trial court failed to make a finding on the material defense of estoppel raised by defendant.

On November 6, 1951, J. J. Howell, president of plaintiff corporation, and defendant signed escrow instructions at the office of the Home Title Company in Fresno. Defendant agreed to sell and plaintiff agreed to buy the property involved. The description of the land to be conveyed was discussed by Howell and defendant in the presence of Mr. Mathias, the escrow officer. At the request of Howell and defendant, he prepared a sketch describing the property to be sold as a rectangular parcel 100 feet north and south and 260 feet east and west. This sketch was prepared by Mathias from one drawn by Howell and the dimensions of the property shown on the sketch or diagram were given to him by Howell. Mathias then drew the escrow instructions and the property to be conveyed was described therein as “per sketch.” The sketch or diagram was fastened to the escrow instructions by a paper clip and both Howell and defendant,

[390]

after seeing the plat and sketch, signed the escrow instructions.

On November 20, 1951, Mathias prepared a grant deed from defendant to plaintiff describing the property to be conveyed as a rectangular parcel 100 x 200 feet, thus omitting to include a rectangular parcel 60 x 100 feet also described in the escrow instructions. At the trial, Mathias, when asked to explain why the deed in escrow between plaintiff and defendant contained a different description than that in the original instructions, replied, “I can answer it by saying that I don’t know why. No, I have no explanation.”

Plaintiff Howell testified that the first time he knew that he had received less property than described in the escrow instructions was about a month before the present action was filed. Defendant testified that he agreed to sell plaintiff the real property described in the deed, 100 x 200 feet; that he did not tell Howell he was selling the 60 x 100 feet omitted from the deed; that the description read to him by Mathias was 100 x 200 feet; that no sketch or diagram was attached to the escrow instructions when they were signed and that the deed subsequently signed and acknowledged before Mathias correctly reflected the transaction and sale.