Duff v. Engelberg

PIERCE, P. J.

The sole question on this judgment-roll appeal by defendants Dalton Engelberg and Ann Engelberg from a plaintiffs’ judgment against them is, as stated in defendants-appellants’ brief, “whether a vendee under an executory contract to purchase real property can recover in addition to specific performance of said contract along with consequential and incidental relief damages, both compensatory and exemplary, against a third party who induced the vendor not to go forward with the sale....”

Affirming the trial court’s judgment we hold that he can, that the measure of damages is not the same in the cause of action against the third party tortfeasors as it is in the count for specific performance against the vendor.

We summarize the findings of the trial court which, since this is a judgment-roll appeal, we must accept as supported by substantial evidence. (See 3 Witkin, Cal. Procedure (1954) Appeal, §§ 80, 81, pp. 2240-2241.)

Plaintiffs entered into a binding contract for the purchase of a lot in Carmichael, Sacramento County, from defendants McCoy. Defendants Engelberg and Campbell, who did not want plaintiffs and their family to live in the neighborhood because plaintiffs are Negroes, maliciously caused the McCoys to refuse to perform the contract. Instead, the McCoys con

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veyed the property to the Campbells “as trustees.” The conspirators had actual knowledge of the contract between the McCoys and plaintiffs and the conveyance was made for the express purpose of defeating plaintiffs’ rights.

The court decreed specific performance with incidental damages against defendants McCoy. These damages consisted of interest at a higher rate that plaintiffs had to pay while they pursued their remedy of specific performance. The court also gave judgments against the Engelbergs and the Campbells for $1,000 compensatory damages and $500 punitive damages.

The thesis of appellants is that since plaintiffs were made whole by the judgment for specific performance (with incidental relief) they cannot have additional relief against the conspirators. They argue that since plaintiffs could not both obtain specific performance and have an action at law for damages for breach of contract against the vendor, neither can they sue and recover against the parties inducing the breach of contract after having sought and obtained specific performance.