Smiley v. Read

MELVIN, J.

Plaintiff and defendants entered into an agreement whereby the former promised to purchase and the latter covenanted to sell certain real property described in the contract as “The 10.90 acres in the southwest corner of Grand and Minnehaha aves., known as the Geo. Read Tract.” Thereafter defendants caused their land to be platted and a portion thereof to be dedicated for street purposes. A part of said property was designated as “Lot 1 of tract 478,” and a deed indicating it by that form of description was tendered to plaintiff. He accepted the deed, paid the balance of the purchase price together with a note and mortgage in accordance with the terms of the contract of sale and then made demand for a conveyance of a difference of acreage between that mentioned in the agreement and the area of “Lot 1 of tract 478.” This being refused, he sued for specific performance of the contract, or, if that were no longer possible, for damages arising from the breach. The court determined that defendants had put specific performance out of their power and gave judgment for damages in the sum of $753.52 with costs. Defend

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ants prosecute this appeal from the said judgment. The appeal is upon the judgment-roll alone.

Appellants rely for a reversal of the judgment principally upon an alleged estoppel. Respondent denies the estoppel and insists that in any event as no estoppel was pleaded none may be recognized. There was, however, a pleading of facts which, if established, would estop plaintiff from denying full satisfaction of his claim arising under the contract, for defendant George J. Read in his answer: “Denies that prior to the payments of the moneys or the execution -and delivery of the securities hereinbefore alleged, plaintiff did not know the number of acres conveyed by defendant’s deed, but allege the facts to be that prior to the payment of said $3,000.00 and the execution and delivery of said securities, the plaintiff examined the deed tendered by defendant, and also the certificate of title, and that after said examination plaintiff paid to said defendant the said sum of $3,000.00 and delivered the aforesaid securities and accepted said deed and certificate without any objection to the sufficiency thereof whatsoever.” The court found: “That at the time said transaction was closed, the parties met at the First National Bank of Glendora and there were present the plaintiff, and Mr. Converse, his attorney; the defendants not being present, but being represented by Mr. Weaver. That the certificate of title which the defendants tendered to the plaintiff showed said lot 1 to contain 9.676 acres of land, and the deed which defendants tendered described said land to be conveyed, as lot 1 in tract 478. That plaintiff accepted said deed and certificate of title, paid the balance of the money he was to pay, and delivered the note and mortgage which he was to deliver, and went out. That when Mr. Weaver went out, Mr. Converse served upon him a paper he had prepared before the deed was delivered, and accepted, and stated that the land was short, and demanded that they give them full measure or pay them the money. That Mr. Weaver stated that he knew nothing about that, and that they should notify Mr. Read about that; and afterward they did notify Mr. Read. That during all the negotiations defendants were acting as agents for each other. ’ ’ This finding establishes the estoppel for which defendant contends. Section 2076 of the Code of Civil Procedure provides that “The person to whom a tender is made must, at the time,