Sand v. Concrete Service Co.

DOOLING, Acting P. J.

On August 25, 1953, the parties executed a written contract for the purchase and removal by defendants from a quarry property owned by plaintiffs of sand, gravel and other construction aggregates (hereafter called aggregates) at an agreed price of 15 cents per ton with a minimum agreed payment of $1,000 per month. The real property involved contained deposits of both clay and aggregates which lay in strata one above the other. By the terms

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of the contract defendants were entitled only to remove the aggregates, the clay being reserved for sale to another party. A contract for the sale of the clay had in fact already been entered into with other parties (Mahaney and Jarrett), who planned to establish a factory for the manufacture of bricks. Because of difficulties which they encountered Mahaney and Jarrett ultimately obtained a cancellation of this contract for a consideration, leaving no agreement outstanding for the removal of the clay.

Defendants failed to remove any of the aggregates from the property and on January 6, 1955, plaintiffs commenced this action against defendants alleging a breach of the contract of August 25, 1953, and praying for damages therefor. Defendants answered and cross-complained. By their cross-complaint defendants alleged that the aggregates on the property were covered by an overburden of clay and alleged the contract duty of plaintiffs to remove such clay overburden and their failure to do so. They prayed for specific performance of this alleged duty and in the alternative for damages.

The trial court, after hearing parol testimony on the theory that the contract was ambiguous and uncertain on the question of whose duty it was to remove the overburden of clay, concluded that in fact the contract had been entered into under a mutual mistake of fact, in that at the time of the execution of the contract both parties believed that the deposits of clay would be removed by Mahaney and Jarrett under their contract with plaintiffs and, after permitting defendants to file an answer so alleging to conform to the proof, entered judgment denying relief to both parties. Plaintiffs moved for a new trial and the trial court set aside its findings and judgment and permitted both parties to introduce additional evidence on the issue of mistake. The court again concluded that the contract had been executed under the mutual mistake of fact of both parties and entered a second judgment denying any relief to either party on the contract. Prom this judgment plaintiffs appeal.