Matheron v. Ramina Corp.

CONREY, P. J.

This is an action wherein the plaintiff seeks to compel specific performance of an alleged contract of date October 10, 1916, for the purchase by the defendant of 298 acres of land in Kern County, and to compel payment of $8,000, the alleged purchase price. Judgment was entered denying specific performance, but at the same time awarding to plaintiff the sum of $3,000, damages for nonperformance of the contract. From this judgment the defendant appeals.

Appellant presents this appeal upon several grounds, the first of which alone, if sustained, is sufficient to determine the result of the action. This is that the judgment should be reversed because there is no evidence of any contract or memorandum in writing subscribed by appellant or by its agent thereunto authorized in writing. If there is no such evidence, then there was no contract, and there can be neither breach nor consequent damages. (Civ. Code, sec. 1624, subd. 5.) Respondent contends that the contract is evidenced by a series of writings which, taken together, comply with the requirements of the statute of frauds. It will be necessary to refer briefly to this series of documents.

The first is a memorandum of lease, dated October 1, 1914, between the plaintiff and one J. W. Jennings, which was signed by these persons, and reads as follows

“Received of J. W. Jennings of Tehachapi, Kern County, California, the sum of two hundred dollars ($200.00) as full payment for the first year’s lease on 240 acres of land near Oak Creek, Kern County, California. The said lease is to run two years at two hundred dollars per year payable in

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advance and that J. W. Jennings has the option to buy the said land at any time during this lease at a price to be mutually agreed upon, but said price not to exceed eight thousand dollars.”

The second is a document of date September 28, 1916, signed by the plaintiff alone, which reads as follows:

“Bakersfield, Calif.

“Received through James F. Farraher two hundred fifty dollars on account acceptance of option to J. W. Jennings of Tehachapi, Calif., on October 1, 1914, giving right to purchase my land on Oak Creek, Kern Co., Cal., embracing the west half of section 32, township 12 north, range 14 west, S. B. M., and containing 297.89 acres, 50% of the purchase price of $8000.00 less the $250.00 paid this day to be paid on or before 30 days from date. The balance of said purchase price to be due and payable on or before one year from date. Deed of grant therefor to be executed and delivered in escrow to the First National Bank of Bakersfield, Calif. Vendee or successor to have privilege on payment of 50% of said purchase price as stated, of receiving deed upon execution and delivery of mortgage to said vendor covering the 50% of purchase price unpaid and drawing interest at the rate of 6% per annum. Title to be fee simple and free of incumbrances. Abstract of title to be delivered to vendee within ten days from date.