Rittigstein v. Dignan

NOURSE, P. J.

Plaintiff sued for the specific performance of a contract to sell real property. Defendant had judgment, from which the plaintiff has appealed on typewritten transcripts.

The contract was in writing upon a form generally used by members of the San Francisco Real Estate Board. When presented to the defendant for signature it read (in part) : “Received from Bruce Painter, hereinafter designated as the purchaser, the sum of Five Hundred ($500.00) Dollars being deposited on account of Twenty Thousand ($20,000:00) Dollars lawful money of the United States of America, the purchase of the following described property in the City and County of San Francisco, . . . Subject to: Bank loan of twelve thousand ($12,000.00) Dollars to one subsisting lease, etc.” Before signing the contract the defendant

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drew a line in ink through the words and figures “twenty thousand ($20,000.00) Dollars” and inserted the figures “$21,000.00” and then added after the word “dollars” the words “net cash to be paid to seller”. The contract, as thus altered, was then presented to the purchaser, who gave his approval and deposited the sum of $9,000, which he claimed to be the full purchase price upon the assumption of the bank loan of $12,000. The defendant refused to accept the payment and refused to go further with the contract upon those terms. His claim was that the words “net cash to be paid to seller” meant that he was to receive $21,000 in cash and that the purchaser was to assume the bank loan and all other encumbrances to which the sale was specially made subject. The purchaser thereupon assigned his interest to the plaintiff, who brought this action.

The judgment must be affirmed. First, because the complaint does not state facts sufficient to constitute a cause of action in that it does not state any facts showing that the consideration was adequate or that the contract was just, fair and reasonable as to the respondent. (Sec. 3391, Civ. Code;

Joyce

v. Tomasini, 168 Cal. 234, 237 [142 Pac. 67] ;

Salisbury

v.

Yawger,