Rose v. Lawton

AGEE, J.

Plaintiffs obtained a' default judgment foIIowr ing the failure of defendant to appear or answer within the time prescribed by law. (Code Civ. Proc., § 407.) Defendant appeals from the judgment and from the order denying her motion to set it aside.

The action is one for specific performance of a written agreement wherein appellant agreed to sell and respondents agreed to buy a house for $25,500. Respondents also sought damages resulting from appellant’s failure to perform.

The judgment ordered appellant to perform the agreement and awarded respondents damages in an amount to be fixed after receipt of the report of a commissioner appointed by the court to perform certain duties and obtain certain information.

The complaint did not state a cause of action in specific performance because it did not allege that appellant had “received an adequate consideration for the contract” or that the contract was, as to her,11 just and reasonable. ’ ’ (Civ. Code, § 3391, subds. 1, 2;

Foley

v.

Cowan

(1947) 80 Cal.App.2d 70, 74 [181 P.2d 410];

Mayer

v.

Beondo (1948) 83

Cal.App.2d 665, 667-668 [189 P.2d 327, 190 P.2d 23];

Baran

v.

Goldberg

(1948) 86 Cal.App.2d 506, 509 [194 P.2d 765];

Mackay

v.

Whitaker

(1953) 116 Cal.App.2d 504, 509 [253 P.2d 1021].)

This being so, respondents were not entitled to a judgment for specific performance even though it was taken by default and even though some evidence was introduced at a hearing before the court held prior to the entry of judgment.

In

Williams

v.