Bird v. Potter

COOPER, C.

This action was brought to enforce specific performance of a written contract for the sale of real estate.

[287]

The court filed findings upon which judgment was entered for plaintiff. Defendant made a motion for a new trial, which was denied, and now prosecutes this appeal from the order denying his motion. He claims that the evidence is insufficient to justify the judgment and decision, and that certain errors of law occurred during the trial to his prejudice.

The contract upon which the action depends is as follows:—

“Los Angeles, Cal., May 16, 1902.

“Received of Samuel M. Bird five dollars as deposit and part of the purchase price of lot twenty-one, block ‘D’ of the Potter’s Woodlawn Tract. Full purchase price to be $450.00. This deposit is taken subject to the approval of the owner.

“W. I. Hollingsworth & Co.

“Thomas McD. Potter.”

The name of the owner, Thomas McD. Potter, was signed to the contract after it had been first signed by his agent, W. I. Hollingsworth & Co. The five dollars was paid by plaintiff at the time the writing was given to him.

It is claimed by appellant that he never received an adequate consideration for the contract; that it was not binding upon plaintiff, because he did not agree to pay the $450 for the lot, and hence, the contract not being mutual, cannot be enforced in a court of equity. The claim is without merit. The contract is in writing, subscribed by the party to be charged, describes the land to be conveyed, and names the consideration for which defendant agreed to convey. Time is not made the essence of the contract. No demand was ever made by defendant for the balance of the purchase price, and the court finds that ‘‘on the 10th day of December, 1902, plaintiff offered to said defendant, Thomas McDaniels Potter, the sum of $445, in U. S. gold coin,” and demanded of said defendant a deed for said lot, and that defendant refused to accept the said $445, or to give plaintiff a deed for said lot. This finding is supported by the evidence, and not questioned. If the amount named as the purchase price was not adequate, the defendant should have so determined in his own mind before he signed the contract, but having signed it and stated the amount for which he would sell the lot, he must live up to it. Any other rule would make the contract worthless and mere waste paper. Defendant knew the meaning of it when he signed it, and the price for which he agreed to sell the lot.