Fowler v. Sutherland

Belcher, C. C. — This is an action to enforce the specific performance of an alleged verbal contract for the sale of certain lands in the county of Fresno, on the ground of part performance. The contract is alleged to have been made between one John Sutherland, deceased, and one Jesse Morrow, and the lands referred to consist of several separate and disconnected lots in the town of Fresno, and several other tracts situated in different parts of the county, some of them being miles apart.

The allegations of the complaint are: “That on- the nineteenth day of July, 1880, one Jesse Morrow and the said John Sutherland entered into a verbal agreement whereby the said John Sutherland agreed to sell and convey to the said Jesse Morrow all of the above-described property, on the payment to him, his heirs, executors, administrators, or assigns, within a reasonable time thereafter, by the said Jesse Morrow, his heirs, executors, administrators, or assigns, the sum of ten thousand dollars, lawful money of the United States of America, the said [416]Jesse Morrow agreeing at the same time with the said John Sutherland, to pay to him, his heirs, executors, administrators, or assigns, the said sum of ten thousand dollars within a reasonable time thereafter. That afterwards, and in pursuance of the said verbal agreement aforesaid, the said Jesse Morrow entered upon said premises with the consent and acquiescence of the said John Sutherland, and in part performance of said agreement, and with the full knowledge of said Sutherland, made valuable improvements upon said property, to wit, of the value of fifteen hundred dollars.

The complaint also alleges the death of John Sutherland on the twentieth day of August, 1881; the appointment of the defendant William Sutherland as administrator of his estate; the assignment by Morrow to the plaintiff, for a good and valuable consideration, of “all his (Morrow’s) right, title, and interest in said agreement aforesaid, and in and to the said land,” and a tender by the plaintiff, on the twenty-fifth day of October, 1882, to the administrator of the estate of Sutherland of “the sum of ten thousand dollars as the purchase price of said land, together with a sum additional thereto, in payment of lawful interest on the said ten thousand dollars, from the nineteenth day of July, A. D. 1880, to the commencement of this suit, at the same time demanding from the said administrator a deed of conveyance of said lands,” which tender and conveyance were refused.

The defendants demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, and upon the further ground that it was ambiguous, unintelligible, and uncertain, in that it did not specify the terms of the agreement for the sale of the land, nor what improvements were made by the plaintiff or his grantor, nor the particular tract or tracts of land on which such improvements were claimed to to have been made.