Pulse v. Hill

SALSMAN, J.

This is an appeal from a decree of the trial court, directing specific performance of an oral option to purchase real property. Appellant rested his defense on

[302]

tiie statute of frauds (Code Civ. Proc. § 1973, sulid. 4; Civil Code § 1624, subd. 4).

Mrs. Georgia Cordry was the owner of approximately 640 acres of land near Livermore. Respondent, Jack Pulse, and Mrs. Cordry lived in adjoining houses. Mrs. Cordry was 84 years of age at the time of her death. She lived alone, and respondent assumed to care for her by bringing food, preparing meals for her, and providing medical care for her when she was ill. In October 1948 respondent secured a written lease from Mrs. Cordry to all of the real property here involved. The lease was for two years, and contained an option in respondent’s favor, granting him the right to purchase the property for the sum of $3,500. In September 1950 this lease and option was extended in writing for an additional three years, ending October 31, 1953. On September 1, 1953, respondent prepared a letter addressed to Mrs. Cordry stating in part: “I hereby accept your offer of renewing the lease and option . . . for a term of five years.” Respondent took the letter to Mrs. Cordry. She did not sign it but upon its receipt stated, according to respondent’s testimony: “that was fine and she had papers made out to protect me and she wanted me to have the place and it was mine as far as she was concerned. ’ ’ Other witnesses testified they had heard Mrs. Cordry express a wish that respondent have her property. Mrs. Cordry died in February 1954 and appellant was appointed administrator of her estate. The trial court found that the lease and option had been orally extended on or about September 1, 1953, and directed specific performance on the ground of estoppel.

Appellant contends there is a material variance between the pleading and the proof which requires retrial. Respondent alleged and attempted to prove a written contract, but on the evidence the court found the agreement to be an oral one. In

Sublett

v.

Henry’s etc. Lunch,

21 Cal.2d 273 [131 P.2d 369], the court said at page 277: “Proof of an oral contract where a written agreement has been alleged is a material variance between pleading and proof wliich requires a reversal if the variance has actually misled the adverse party to his prejudice. (Code Civ. Proc., § 469.) ” (See also 29 So.Cal.L.Rev. 182, 189.) Here the record strongly suggests that appellant has been misled in maintaining his defense. When respondent alleged a written contract appellant pleaded the statute of frauds, and demanded an inspection of the claimed writing. Appellant was met with the explanation that the writing had been misplaced. The