Minaker v. Sunset Building & Real Estate Co.

THE COURT.

This is an action brought by A. J. Minaker against the Sunset Building & Real Estate Company, Interurban Real Estate Company, and Hugo D. Newhouse, for the specific performance of a contract alleged and shown to have been entered into between A. J. Minaker and the Sunset Building

&

Real Estate Company (or that corporation under another name), for the purchase of certain lots, a portion of a larger subdivided tract of land, for the sum of one thousand and seventy-five dollars, plaintiff alleging that he had completed and complied with the terms of that contract and that he was entitled to have his contract specifically enforced, not only against the immediate vendor named in that

[773]

contract, but also against the subsequent incumbents and. purchasers, named also as defendants in this action.

The first point made by the appellants is that the complaint is defective in that it does appear sufficiently from the face of the complaint that the contract is a fair and equitable contract; or, in other words, such a contract as a court of equity will enforce. The complaint sets up

in haeo verba

the contract itself, and further states that the purchase price of the property stipulated in that contract was the fair and reasonable value of the property at the time the contract was made. We think the allegation that the purchase price of the property was fair and reasonable, taken in connection with the terms of the contract and set out fully in the complaint, suffices to satisfy the statute in that respect and that the first point urged by the appellant is not well taken.

(Reese Co.

v.

House,

162 Cal. 740, [124 Pac. 442].)

The point is also made upon the demurrer in the briefs of counsel that the allegation in the complaint that a strict compliance with that part of the contract requiring all payments of the purchase price to be made upon certain days and in certain amounts was duly waived by the defendant and the Sunset Building & Real Estate Company, would cause a variation in the rule which has just been announced by the court ; and that further, since a contract in writing can only be modified by a contract in writing, the alleged waiver set forth in the complaint would be void. To this there are two answers ; first, that it appears from the face of the complaint that whatever change in the contract was made in this respect, whatever variation was accomplished, was a fully executed variation as between the original parties to the contract ; but the second and better answer is that upon the face of the complaint it does not appear as to whether the waiver of this particular provision of the contract was, or was not in writing, the only allegation being that the terms of the contract in that respect were duly waived by the respective parties thereto. The supreme court has held in a number of eases that whenever it is necessary that a contract or modification of a contract should be in writing, and the complaint alleges that the contract or modification of the contract was actually made and entered into between the parties, the presumption will be that the contract or modification was in writing in the absence of an averment to the contrary.