Tibbs v. Smart & Final Iris Co.

GRIFFIN, J.

Plaintiffs and appellants Donald E. Tibbs, Frances E. Luecker and Ann M. Hoffman brought this action against Smart and Final Iris Company, J. N. Peterson, president, and L. N. Lanier, agent, defendants and respondents, for specific performance, alleging that defendant Smart and Final Iris Company owned an unimproved tract of land in San Diego

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(describing it); that on October 7, 1955, a certain counteroffer to sell was submitted by defendant Peterson to one Humphrey Lane, agent for plaintiffs, which counteroffer was repeated on October 12th by defendant Lanier, agent for defendant Smart and Final Iris Company, offering to sell to plaintiffs the described property for $18,500, with $2,500 cash down payment and final conveyance subject to and contingent upon the parcel being zoned for an off-sale liquor establishment; that on October 13, 1955, plaintiffs’ agent, Lane, accepted said offer by letter addressed to defendant Lanier; that plaintiffs are able to perform, and by telegram on October 15th, repeated their willingness and ability to perform, and demanded defendants’ conveyance according to the terms of “written agreements hereinbefore set forth”; and that defendants refused. Specific performance is sought. The contents of the telegram and letters were not set out in nor attached as exhibits to the complaint.

By answer, defendants admit the agency of Lanier; admit that on October 7, 1955, the company wrote a letter to Lane, and on October 12th, Lanier, as agent, wrote a letter to Lane. The contents of these letters were not set forth. Defendants denied all other allegations of plaintiffs’ complaint.

On December 15,1955, defendants moved for summary judgment, based on the attached affidavits of Peterson and Lanier, and the files in the ease. On January 4, 1956, plaintiffs moved to amend the complaint and to set forth in full the letters to which reference was made. Plaintiffs’ counsel filed his counter-affidavit in opposition to the motion for summary judgment, alleging these letters were not in his possession at the time of the filing of the complaint; that he is now ‘ convinced that these letters, in their entirety, contain an offer and acceptance forming a contract of sale.” Copies of the letters were attached thereto. Apparently, on the hearing of the motion for summary judgment it was stipulated between counsel that plaintiffs might amend their complaint by incorporating copies of these letters. A full hearing was then had on the motion. Plaintiffs’ complaint was, by judgment of the court, dismissed on the ground that no triable issue of fact was presented. This appeal is from that judgment. There is no record of any oral proceedings had before the trial court except the clerk’s transcript.