Sunrise Land Co. v. Root

MELVIN, J.

Plaintiff brought an equitable action to en-

force the specific performance of a contract for the sale of 840 acres of land in Stanislaus County, at one hundred dollars per acre. This contract was made by plaintiff and Messrs. Root & Saunders (co-partners), alleged in the complaint to be defendant’s duly authorized agents for the sale of the land, the written agreement between defendant and the said co-partnership granting the latter full power to contract for the

[96]

sale of any or all of the land described in the complaint, being made a part of the pleading. Defendant demurred to the complaint; her demurrer was overruled; and after she had answered, the case was tried on its merits, with the result that judgment was rendered in favor of .plaintiff, decreeing specific performance of the contract. From this judgment defendant appealed on the judgment-roll alone, the record being authenticated by stipulation of counsel that it correctly set forth the complaint, demurrer, proceedings of argument on demurrer, minute order overruling defendant’s demurrer to the complaint, etc. Appellant filed her points and authorities, resting her appeal upon the single contention that her demurrer should have been sustained because of want of sufficient facts in the allegations of the complaint, and it is pointed out in the brief of her attorneys that said complaint fails to allege that defendant received an adequate consideration for the contract, or that it was as to her just and reasonable. Thereafter, plaintiff filed a document entitled “Suggestion of diminution of record,” asking permission to insert at the proper places in the complaint an allegation respecting the reasonableness of the contract and adequacy of consideration, which would meet the point made in appellant’s brief. This amendment was sought for the reason, as stated by one of plaintiff’s counsel in an affidavit accompanying the “Suggestion of diminution of record,” “that the said allegation in the complaint was inadvertently omitted and the findings inadvertently made to follow the complaint, and the point was never raised that such allegations were omitted, but on the other hand, the case was tried by the court and the evidence was introduced without objection showing the reasonableness of the consideration and that the complaint was amended by implication and the first time that the point was ever raised specifically by the defendant was on her brief on appeal herein.” This document also presents the written opinion of the judge of the superior court who tried the case, and certain extracts from the testimony at the trial. Respondent seeks to utilize part of this opinion as a finding upon the adequacy of consideration, and to show by the selected portions of the testimony that this matter was thoroughly tried in the action. We have no power to correct a record by inserting allegations in the complaint which were never there, and cannot, of course, receive respondent’s sug