Janssen v. Davis

THE COURT.

This is an appeal from a judgment decreeing specific performance of a contract for the purchase and sale of a parcel of real property, together with the improvements thereon. The plaintiff is the vendor and defendant W. K. Davis is the vendee. Judgment was rendered in favor of defendant Emelie Davis and, inasmuch as plaintiff does not appeal, her rights are no longer involved.

The facts as disclosed by the record are as follows:

Plaintiff is a building contractor and the defendant is a real estate agent. Defendant, as agent, had sold certain property for plaintiff, as a result of which there was due and owing to defendant as and for commissions the sum of $2,537.50. Some time in June or July, 1923, defendant, who was planning to be married, approached plaintiff for the purpose of buying a home from him. Defendant was not satisfied with any of the houses then constructed and asked plaintiff to build him a house. The parties finally agreed upon a lot then owned by plaintiff and, after considerable discussion, mutually agreed as to the general plan of the house. All negotiations were oral. Plans were drawn and construction started before all of the details of the house had been agreed upon. The evidence clearly shows that the parties agreed that the total cost of the lot and the proposed building should be “about” or “approximately” $11,250. This figure was based on the general plans which had been prepared, but it was contemplated that the defendant would, during the course of construction, order certain extras or additions, for which an extra charge should be made. The defendant makes much of the fact that plaintiff did not testify to the exact amount agreed upon, but the record shows that the only uncertainty was as to the value of these extras. During the course of construction, the defendant ordered many changes, extras and additions, the reasonable value of which brought the total value of the property to $13,250, the amount found by the trial

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court to be the agreed value. There is evidence that this was a reasonable and fair price for the property. Although the evidence is conflicting, there is ample evidence to sustain the trial court’s finding that it was agreed that the $2,537.50 due and owing from plaintiff to defendant should be applied to the purchase price. As to the balance of the financing, the evidence is not entirely satisfactory. It was ai>parently agreed that a bank loan should be secured and that the balance of the purchase price should be evidenced by defendant’s note, carrying six per cent interest, secured by a second mortgage, or by plaintiff retaining title. There is no dispute that the parties did negotiate and secure $4,500 on a first deed of trust from a bank. The defendant refused to sign a note for the balance of $6,212.50. When the house was completed in September, 1923, defendant moved in and took possession. As far as the record is concerned, he is still in possession, although it is stated in one of the briefs that he was evicted in 1931. During that entire period, with the exception of the application of plaintiff’s debt to defendant on the purchase price, defendant has refused to pay one cent to plaintiff, and all expenses for taxes, insurance, interest on the first deed of trust, etc., have been paid by plaintiff. Shortly after the completion of the house a controversy arose between the parties and, in July of 1924, this action for specific performance was commenced. The defendant answered, denying the allegations of the complaint, and cross-complained for the amount of commissions due him. The case did not proceed to trial until October of 1928'. After plaintiff had completed his ease, for reasons that do not appear, the trial was continued and was not resumed until December of 1929. The long intermission partially tends to explain plaintiff’s failure to produce certain testimony hereafter referred to.