Rector v. Lewis

MELVIN, J.

Plaintiff sued' for specific performance of an alleged contract for the exchange of real property. Defendants answered, pleading a rescission of the contract after breach thereof by the plaintiff, and by cross-complaint averred that plaintiff was wrongfully withholding their property from them. They prayed for restitution of the premises, for an award by way of damages, and for rent. The defendants were successful both in their defense and in their action upon the cross-complaint. Plaintiff appeals from the judgment, and from an order denying his motion for a new trial.

The important findings requiring discussion on this appeal were to the effect that plaintiff had not surrendered to defendants, or to either of them, the property which was to be exchanged for the realty which is the subject of this suit; that by means of misrepresentation plaintiff had obtained entrance upon the property of defendants in Los Angeles County on February 15, 1912, and that, on the seventeenth day of the same month, by threats and intimidation, he had compelled them to yield possession of the premises to him— a possession still retained by him at the time of the action; that after frequent vain demands upon plaintiff for performance of the contract defendants rescinded it on the eleventh day of June, 1912; that plaintiff during his occupancy had made certain improvements on the land which were equal to the value of the use thereof exclusive of the crops grown thereon; and that up to the time of the receipt by him of the notice of rescission of the contract plaintiff had not attempted in good faith to carry out the terms of the agreement with defendants. An interlocutory decree was given following these findings and ordering an accounting between the parties with reference to the personal property.

The contract was evidenced by two certain writings. By the first of these "W. J. Lewis agreed to transfer the land in question, located in Los Angeles County, together with all the personal property thereon (except certain named chattels) for fifteen thousand dollars, the consideration being certain lands in Nebraska, subject to an existing lease continuing

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from March 1, 1912. The land in Nebraska was to be subject to two mortgages of one thousand dollars each, and the property in California to a mortgage of three thousand dollars. The closing paragraph of this written instrument was as follows: