Barendregt v. Downing

GRIFFIN, P. J.

Appellants brought this action for specific performance and damages because of respondent’s alleged refusal to perform a contract for the sale of real property. Respondent filed a cross-complaint seeking to rescind the contract and for damages in the amount of $50,000, alleging that appellants had conspired with others to obtain her property by means of fraudulent misrepresentations and duress.

The trial was held during April, 1958, but arguments were delayed until July 1, 1958, because of the illness of the trial judge. Findings were signed by the trial court and thereafter on August 26, 1958, judgment for appellants was entered granting specific performance and damages. Thereafter, within the time when respondent could have given notice of intention to move for a new trial, the parties were requested by the trial court to reappear before it. The court then stated that before the conclusion of the hearings in April respondent’s attorney had requested and been given permission to put on more evidence on mitigation of damages, but this opportunity to present evidence had not been afforded respondent; that this oversight had been called to the court’s

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attention and that the trial should be reopened to enable respondent to put in the additional evidence on damages. The court then requested the parties to stipulate that the findings of fact and the judgment already entered be set aside and the additional evidence received for this purpose. Counsel for appellants readily acceded to the stipulation and sought to widen the scope of evidence to be received to enable him to prove additional damages suffered by appellants. The court then stated the stipulation for the record as follows:

“On stipulation of counsel for the plaintiff (appellants) the findings of fact and conclusions of law heretofore entered into by this Court and signed by this Court and the judgment entered and signed thereon (are) set aside for the purpose of reopening the case, in so far as the defendant, Mrs. Downing, is concerned for the introduction of certain evidence as to the question of damages in this matter.”

Acting upon the stipulation the court proceeded to take additional evidence. Unfortunate differences arose between counsel, spectators, the parties and the court. The court then, upon invited motion of counsel for respondent, orally granted a new trial on the grounds of the insufficiency of the evidence. At a later date, in the presence of counsel, the court indicated that the granting of a new trial was erroneous because the findings and judgment had been set aside and no new judgment had been entered. The court then granted a mistrial.