Martin v. Condrey

HART, J.

This is a suit in equity for the reformation and ■specific performance of a certain contract entered into between one E. Tubbs and the defendant for the conveyance to the ■former by the latter of certain real property situated in the town of Yreka, Siskiyou county.

The court overruled a general and special demurrer interposed to the amended complaint. The defendant declined to answer, and thereupon a judgment reforming said contract and decreeing its specific performance as so reformed was entered against said defendant.

This appeal is from said judgment.

[619]

The averments of the complaint fail to disclose any ground which would authorize or justify a decree compelling the specific performance of the contract involved in this controversy and the demurrer should, therefore, have been sustained.

The offer by the defendant to sell said property to said Tubbs is in writing, dated, “March 26,1908,” and is addressed to “Mr. E. Tubbs,” and signed by the defendant. Therein the defendant offered to sell to Tubbs ‘ ‘ all of my property in Yreka for $1500, or the land without the building for $1090.00 or the north half of said land for $550.00, terms cash within 24 hours or $50.00 to-day and balance on or before April 5th, 1908.” Defendant further stipulated to “give you a good and sufficient deed at any time the money is put up within said time. I further agree to move off the house within 60 days should you take the whole of said land.”

It may here be remarked that said contract was, on the thirtieth day of March, 1908, for a certain consideration, assigned and transferred by said Tubbs to the plaintiffs herein.

The complaint alleges that the contract between Tubbs and the defendant consisted of the written offer to sell to which we have referred and the acceptance of said offer “which was orally made by said E. Tubbs, at said Yreka City, county of Siskiyou, state of California, within the time stipulated by said offer for such acceptance, and accompanied by the proper tender of gold coin of the United States of America, to wit: Fifty (50) dollars”; that “at or about the same time said E. Tubbs demanded of said G. E. Condrey a conveyance of the said property without the house”; that defendant has not made nor executed “any conveyance of the said property without the house to said E. Tubbs, nor to his heirs or assigns, nor to said plaintiffs herein”; that “said plaintiffs are still ready and willing to pay the purchase money of the said property to the said defendant. ”