Sesma v. Ellis

California Court of Appeal Mar 23, 1940 No. Civ. 2523Published

Before: Barnard

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Holding. The court held that no binding contract for the sale of property existed between the parties, as negotiations never culminated in a written agreement and any alleged oral agreement was unenforceable under the statute of frauds and lacked mutuality of remedy. Consequently, the court affirmed the decree of partition while modifying it to strike an unauthorized award of attorneys' fees.

Issues

Whether a binding contract for the sale of property was formed between the parties.
Whether the alleged agreement was unenforceable under the statute of frauds.
Whether the court erred in denying specific performance due to a lack of mutuality of remedy.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“The court’s finding that there was no written agreement between the parties is fully sustained by the evidence.”

“The only thing that clearly appears in connection with the negotiations is that the respondents insisted that they would not enter into any agreement unless its terms were reduced to writing.”

“Moreover, any oral contract to convey this property would have been unenforceable because of the statute of frauds.”

BARNARD, P. J.

The respondents, as joint tenants, owned an undivided half interest in a 39-acre orange grove and in certain personal property used in connection therewith. The appellant Irene Petersen owned the other half interest in said property and she and her husband, the other appellant, had resided on the real property for some years. The other defendants held encumbrances on the property, or were made parties for other reasons, but their interests are not in dispute or involved here.

On October 30, 1936, the respondents brought this action seeking a partition of this real and personal property. After the service of summons and beginning on November 16, 1936, negotiations looking to a compromise and settlement of the controversy were carried on between certain of the parties and their attorneys, different ones participating in the negotiations at various times. A written option “to buy or sell” was prepared under date of December 30, 1936, which provided that the appellants should have the option during a 60-day period to purchase the interest of the respondents in the property for $6,000 cash, provided releases were secured

[141]

releasing the respondents from all liability in connection with three trust deeds on the real property and in connection with current bills or amounts due or to become due on the- personal property. The proposed agreement included a provision that if the option was not exercised by the appellants within sixty days the respondents should have a like option for a similar period to purchase the interest of the appellants, and provided for an escrow to facilitate the handling of the transaction.

On March 16,1937, the appellants filed an answer and cross-complaint. In the latter, it was alleged that on December 30, 1936, the parties entered into a written agreement for the purchase by the appellants of respondents’ interest in this property on described terms which are similar to those of the above-mentioned prepared contract. It is then alleged that the appellants deposited in escrow $6,000 in cash and full releases of all of the encumbrances and liabilities referred -to in the prepared contract; that on February 18, 1937, the respondents were notified that the appellants had fulfilled all of the terms of the contract; and that the respondents refused to carry out their part of the agreement and convey the property to the appellants. The prayer is for specific performance of the contract of- December 30, 1936.

Sesma v. Ellis

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BARNARD, P. J.

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