Leuschner v. Duff

TAGGART, J.

Action to compel specific performance of a unilateral agreement to execute and deliver a contract of sale of real estate. Plaintiff appeals from a judgment in

[722]

favor of defendant and from an order denying his motion for a new trial.

The writing relied upon to satisfy the requirements of the statute of frauds is set out in the complaint, and is in the words and figures following, to wit: ■

“Los Angeles, Cal., Nov. 13, 1905.

“Received from Oscar Leuschner ten dollars on part payment lot 30, block E, of West Los Angeles Tract, lot on N.W. corner Figueroa St. and 39th. 65 or more by 130. Price $800.00; $190 more on contract delivery; $25.00 per month, interest 6 p. c.

‘ ‘ $10. CHRISTINA J. DUFF. ’ ’

The sufficiency of the writing to satisfy the statute is not questioned by respondent; and although this matter is presented by appellant as if the judgment of the court rested upon the theory that the writing was not sufficient for this purpose, we find nothing in the findings to justify this assumption.

Accepting it as sufficient for this purpose, it does not follow necessarily that it is a contract the specific performance of which can be compelled. It is not an option for which a valuable consideration was paid, and it is not a contract by its terms binding both parties to it. The $10 received was accepted as a part of the purchase price and the contract of sale to which plaintiff was entitled was dependent upon the payment of “$190 more,” and his obligating himself to pay the further sum of $600, payable $25 per month, being the residue of the price fixed ($800).

The court found in plaintiff’s favor upon the defenses of inadequacy of consideration and unfair advantage alleged to have been taken of defendant in procuring the execution of the contract. It also found that the writing was the only agreement between the parties; that the $10 mentioned therein was in the form of plaintiff’s personal check, which was never cashed; that the same day it was received by defendant she offered to return it to plaintiff, and notified him that she withdrew and revoked the offer contained in the contract; that there was no further act or offer of performance by plaintiff until ten days after such revocation, when he demanded of defendant that she carry out the agreement, which