Baume v. Morse

TAGGART, J.

Action to enforce specific performance of contract to convey real estate. The answer admitted an agreement to convey, but alleged that the purchase price was another and different sum from that alleged in the complaint, and also that the contract was oral. A nonsuit was granted at the close of plaintiff’s case and judgment entered thereon; and plaintiff appeals from the judgment and from an order denying his motion for a new trial.

The only instrument in writing which was pleaded or introduced in evidence to support plaintiff’s cause of action was as follows:

“Los Angeles, Cal., Oct. 6, 1908.

“Received of Samuel Baume forty dollars deposit on 5 acres in Compton. Good till the first of Nov. 1908.

“$40. Mrs. M. E. MORSE.”

It is urged as grounds for a reversal of the judgment that the trial court erred in not accepting this writing as a sufficient note or memorandum in writing to satisfy the provisions of section 1973 of the Code of Civil Procedure, and to meet the requirements of subdivision 6 of section 3390 of the Civil Code, as a certain statement of the precise act to be done.

The essentials to an enforceable contract to sell real estate are, that it, or a memorandum or note of its terms, shall be in

writing;

that such writing shall declare with certainty the party who sells, the party who buys, the price to be paid, and a description of the property sold by which it can be known or identified.

(Breckinridge

v.

Crocker,

78 Cal. 535, [21 Pac. 179] ;

Craig

v.

Zelian,

137 Cal. 106, [69 Pac. 853].) Measured by these essentials, we find the receipt for the $40 deposit, here introduced, lacking in the two respects last men

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