Harris & Hull, Inc. v. McCarty-Vaughan-Evans Corp.

FINCH, P. J.

This is an action for specific performance of an alleged contract for the sale to the plaintiff of a number of lots in Los Angeles County. The defendants were given judgment for costs and the plaintiff has appealed.

The alleged contract is attached to the complaint and made a part thereof. The lots are therein described by reference to an unrecorded map, which the contract recites is not recorded. It is signed on the part of the seller as follows: “MeCarty-Vaughan-Bvans Corporation, Sellers, Fred T. Linstrum.” The prayer of the complaint is for judgment “for specific performance of said contract, . . . or for damages in case specific performance cannot be had, . . . and for such other and further relief in the premises as may be equitable.”

The answer denies the execution of the alleged contract and, among other defenses, alleges that it “is illegal and void” because the map referred to therein had not been filed for record.

Respondents contend that the contract was not executed by any person having authority to bind the seller. This may be conceded for the purposes of this opinion, but the alleged contract was delivered to the defendants and, admittedly, the plaintiff paid them and, with knowledge of the terms of the contract, they accepted four payments thereon, aggregating $1960.12, which they still retain. This was such a ratification of the contract as to bar any defense on the ground of want of authority to execute it.

It is equally clear that the alleged contract is void by reason of the description of the lots by reference to the unrecorded map, but the plaintiff had the right to recover the money paid on the contract.

(Smith

v.

Bach,

183 Cal. 259 [191 Pac. 14] ;

Hartzell

v.

Doolittle,

205 Cal. 17 [269 Pac. 527];

Letteau

v.

Dumas,

99 Cal. App. 230 [278 Pac. 459];

Shortell

v.