Tutt v. Davis (1910) · DecisionDepot

Tutt v. Davis

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Jul 5, 1910 No. Civ. No. 818.Published

Before: Allen

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Holding. The court held that a contract for the conveyance of real property was valid and enforceable, and that the trial court properly acquired jurisdiction through service by publication in an action to determine an interest in real property.

Issues

Whether service of process by publication is sufficient to establish jurisdiction in an action for specific performance of a real estate contract.
Whether the memorandum of agreement was sufficiently certain to constitute an enforceable contract.
Whether the assignment of the contract by a partner was valid.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The memorandum was sufficient as a contract upon which to base the action.”

“Mutuality attached by the tender and subsequent suit.”

Synopsis

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frank F. Oster, Judge Presiding.

The facts are stated in the opinion of the court.

ALLEN, P. J.

The action was one for a decree requiring defendant to specifically perform a contract for the conveyance of real property. It is based upon an agreement between defendant and plaintiff’s assignor, which is in the words and figures following:

[717]

“Long Beach, California, Oct. 26th, 1904.

“Received of Southern California Realty Co., one hundred ($100) dollars as deposit and part payment on the west 140 feet of lots 10, 12, in block 67 of the city of Long Beach, county of Los Angeles, state of California.

“Certificate of title to be furnished showing said property free of all encumbrances; also deed properly signed and executed.

“Price to be thirty-five hundred ($3500) dollars net to seller; terms, fifteen hundred ($1500) dollars cash, balance payable $1000 in one year and $1000 in two years, with interest at 7% on deferred payments.

“W. J. DAVIS.

“L. F. Oakes,

“Witness to Signature of W. J. Davis.”

It is averred that Oakes subscribed his name as witness at the request of defendant Davis, and that the instrument, duly acknowledged so as to entitle it to record, was recorded in the records of Los Angeles county, state of California, on November 22, 1904; that on the date of the execution of the instrument L. F. Oakes and one Bixby were partners .engaged in buying and selling real estate in Los Angeles county, and doing business under the firm name and style of the Southern California Realty Company. It is further averred that said firm paid the cash payment mentioned in the agreement; that the total consideration agreed to be paid for the property was the fair market value of the same at the time of the agreement, and was as to all parties fair, just and equitable. It is further averred that on November 21, 1904, notwithstanding defendant’s failure to provide the certificate of title as specified, the firm tendered to defendant the balance of the cash payment; that on the 13th of December following such firm assigned and transferred to plaintiff the agreement, with all their right, title and interest to the property described, which said agreement is in the words and figures following:

Tutt v. Davis

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Synopsis

ALLEN, P. J.

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