Cole v. Mugridge

CHIPMAN, P. J.

This is an action for damages for breach of an alleged contract entered into by plaintiffs, who are husband and wife, and defendant on or about March 11, 1914, by the terms of which it is alleged that in consideration of plaintiffs’ giving defendant their personal care, attention, companionship, and consolation and furnishing defendant with necessary food during the remainder of her life, defendant would convey to plaintiffs a certain lot of land situated in the city of Vallejo, together with the dwelling-house thereon and the furnishings therein, defendant to reserve unto herself an estate in said property during her life, plaintiffs to reside with her in said dwelling-house on said premises, “free from rent, during the remainder of defendant’s natural life.”

It is alleged in plaintiffs’ second amended complaint that on March 23, 1914, and for a long time prior thereto, plaintiffs resided in the county of Worcester, state of Massachusetts; that about March 23, 1914, plaintiffs departed from their former home in the said county of Worcester for the city of VaRejo, arriving in said city about April 14, 1914; that on said day defendant had not conveyed said property to plaintiffs in accordance with said contract or at all; that on or about March 11, 1914, and April 14, 1914, and at all times between said dates, plaintiffs were ready and willing to comply with the terms of said contract, and on April 14, 1914, at the said city of Vallejo, plaintiffs “offered defendant immediate compliance with the terms of said contract; but defendant then and there rejected plaintiffs’ said offer of performance, and then and there refused to convey said property to plaintiffs in accordance with the terms of said contract, or at all, and then and there refused to allow plaintiffs to reside in said dwelling-house with or without the use of said furnishings, during the remainder of defendant’s natural life, or during any other period free from rent, or other

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wise, or at all, and then and there refused to comply at all with the terms of said contract. By defendant’s failure and refusal to comply with the terms of said contract as aforesaid, plaintiffs have suffered injury and damage as hereinafter alleged.” That in order to comply with the terms of said contract on their part, plaintiffs were compelled to and did surrender a certain leasehold interest in certain land in said Worcester County, that had four years to run and which was yielding plaintiffs an annual profit of one thousand two hundred dollars and were obliged to pay the lessor the rents reserved, to wit, the sum of $480, to plaintiffs’ damage in the sum of $5,280; that plaintiffs were for like reason obliged to sell, and did sell, certain farm implements and other personal property described, at a loss of $602; that in coming • to California in order to comply with the terms of said contract, they incurred certain expenses, the items of which are enumerated, amounting to $329, and that to return to Massachusetts, the expense to plaintiffs will be a like amount; that plaintiffs were unemployed by reason of defendant’s failure to perform on her part for a period of forty-eight days, resulting in plaintiffs’ further damage in the sum of $240. The prayer of the complaint is for the sum of $6,781.70 and costs of suit. The complaint is verified. The answer consists of specific denials of the averments of the complaint, with the single exception that defendant admits that she would not convey said property to plaintiffs on or about the fourteenth day of April, 1914, or at any time. The cause was tried with a jury and plaintiffs had a verdict for one thousand five hundred dollars, for which amount the court entered judgment with interest from its date, September 2, 1915, and for costs fixed at $111.20.