Julius Levin Co. v. Commercial Centre Realty Co.

STURTEVANT, J.

The plaintiff commenced an action against the defendant to recover damages for an alleged breach of contract. The defendant was awarded a judgment and the plaintiff has appealed under section 953a of the Code of Civil Procedure.

The defendant is a corporation engaged in buying and selling real estate. It had sold under an executory contract to the York Realty Company a lot 40x80 located at and 'being the northeast corner of Stockton and Green Streets. Later the purchaser was about to sell its contract to the plaintiff in this case. Whether after, before, or as a part of those negotiations is not clear, but we will assume, for the purpose of this decision, as a part of the consideration moving to this plaintiff the defendant executed its contract. The defendant still being the owner of adjacent lands on the north side and wanting to build up the neighborhood, advised the plaintiff to purchase the contract held by the York Realty Company and, as an inducement, executed and delivered to the plaintiff a contract in words and figures as follows, to wit:

[720]

“To Julius Levin Company:

“Within one year from date of delivery to you or your nominee of our deed to lot N. E. Corner Stockton and Green Streets, San Francisco, fronting 40 feet on Stockton Street and 80 feet on Green Street, we agree to erect and complete on the lot 40x80 adjoining same to the North, a store, or market building of one or more stories and basement, and if not so completed within said time we will pay to you, or your successor in interest, the sum of $2,500.00, as liquidated damages for the failure so to complete said building within said time, it being impossible to estimate damages in the event of breach of this agreement, it being understood and agreed that delays caused by act of God, or the enemy, strikes, shall not be considered as part of the said period of one year.

“Commercial Centre Realty Co.,

“By A. Ruef, Manager.

“February Twenty-eighth,

“Nineteen Hundred Nineteen.”

According to the terms of that contract, as applied to the other facts above stated, the defendant should have built its building on or 'before February 28, 1920. It did not do so. The plaintiff sued as for a breach. The defendant answered and pleaded (1) a denial, (2) no consideration, (3) a waiver, and (4) a rescission and abandonment. The trial was had before a jury. All of the defenses were supported by at least some evidence, oral or documentary, or both. The jury returned a general verdict in favor of the defendant. No special verdicts were requested or rendered. The third defense was copiously presented. Mr. Ruef, the president of the defendant corporation, testified at length regarding that defense. His testimony was to the effect that in May, two or three months after the date of the contract on which the suit was based, he commenced to have conversations with the officers of the plaintiff corporation of and concerning the nature of the best building which the defendant should build. They discussed a theater instead of a store or market. Estimates indicated that a theater would pay twenty per cent, and tentative leases indicated that a lessee could be found who would advance the most of the money, if not all, needed to construct the theater. When these facts transpired, the plaintiff’s officers