Richmond-Chase Co. v. Schlessinger

WASTE, P. J.

This is an appeal by the plaintiff from a judgment rendered in the lower court, after demurrer to the first count of plaintiff’s complaint sustained without leave to amend.

It appears from the facts pleaded in the first count of the complaint that Mrs. Carrie Losse, as the executrix of the last will and testament of her husband, which gave her power to sell any property of the estate without first having obtained an order of court, entered into a contract with E. N. Richmond by which she sold, and Richmond bought, the entire prune crop then growing on the real property belonging to the estate. This sale was not reported to nor confirmed by the probate court, for the reason that shortly after executing the contract, the executrix received an offer in writing from the defendant to buy the real' property, the

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sale and purchase price to include the growing crops on the land, together with the existing contract for the sale of the 1919 prune crop to Richmond, which agreement the defendant assumed and agreed to perform in the place and stead of the executrix. This sale was confirmed by the probate court. Richmond thereafter assigned his contract to the plaintiff, which made demand upon the defendant for delivery of the crop, which was refused. Thereupon the plaintiff brought this action for damages alleged to have been sustained by reason of the refusal of the defendant to deliver the crop in accordance with the agreement entered into by the defendant and the executrix of the estate.

The complaint is in two counts. The first stated the facts in detail, and the second is a common count for money had and received. The defendant interposed a demurrer which was sustained as to the first count, on the ground of want of facts. In view of the ruling of the court, the plaintiff dismissed the second count, and upon this appeal relies upon the sufficiency of the facts alleged in the first count to constitute a cause of action.

The principal contention of the respondent in support of the ruling of the lower court, and one which no doubt greatly conduced to the action below, is that the attempted sale of the prune crop to appellant's assignor was void for the reason that, from a reading of the contract it is apparent that both the executrix- and the purchaser intended a present sale, and not a mere agreement to sell the crop, the intention being to then and there vest Richmond with the title, contrary to section 1561 of the Code of Civil Procedure, which requires confirmation by the court in order to pass title. The sale not having been reported to the court and confirmed, the contract was only an attempt to pass the title in a manner contrary to express law, and is a void transaction. At most, argues respondent, there was only an implied agreement to report the sale of the crop to the court for confirmation. No valuable consideration had passed. No equitable title had vested in the vendee. The transaction, so far as consummated, meant only that the purchaser was to get title to the prunes and pay the price in the event the court should confirm the sale. The confirmation therefore, would be a condition precedent to any obligation on the part of either the buyer or the seller. In its absence