Crane v. Roach

KERRIGAN, J.

This is an appeal by plaintiffs from a judgment against them and from an order denying their motion for new trial,

[586]

A general statement of the facts of the case is as follows: In the month of July, 1908, the Berkeley Development Company was the owner of the land described in the complaint subject to a written contract to convéy to the defendant Elizabeth D. Roach upon payment of the sum of $1,750, this sum being payable in installments. In the month of July, 1911, the defendant named had paid on account of this sum $1,088.83, leaving a balance of $661.17 unpaid. The lot of land, it seems, had between the two dates mentioned appreciated in value in the sum of $750, making the equity of Elizabeth D. Roach therein of the value of $1,838.83. At this time the defendant named made an assignment of her agreement with the Berkeley Development Company and conveyed all her right, title, and interest in and to the lot of land to the plaintiffs, whereupon the plaintiffs paid the, balance due ($661.17) to the development company, and received from it a deed to the lot. As part of the transaction between Elizabeth D. Roach and the plaintiffs they entered into a written contract, whereby the latter were to erect within ninety working days a dwelling-house for the former according to certain plans and specifications. Under the terms of this contract the plaintiffs agreed to sell and convey to Elizabeth D. Roach (whom we will hereafter refer to as the defendant) the lot and house to be erected thereon for the sum of $5,515, upon which sum was to be immediately credited the amount previously paid by the defendant upon the lot, to wit, $1,088.83, the balance to be paid in monthly installments, together with interest, and upon the completion of the payments the plaintiffs were to convey the premises to the defendant by good and sufficient deed, free from encumbrances.

The complaint is in the usual form to quiet title. The defendants filed an answer and cross-complaint, denying in their answer some of the allegations of the complaint, and setting forth in their cross-complaint in legal verbiage the details of the transaction between the parties. Demurrers to both the complaint and cross-complaint were overruled, and the plaintiffs put in an answer to the cross-complaint. The evidence introduced upon behalf of the defendants showed that the house erected by the plaintiffs under the contract above mentioned differed from the plans and specifications in many material and substantial respects; that omissions and devia