Du Brutz v. Jessup
Before: Foote
Synopsis
Contract—Breach of—Action to Recover for—Pleading. — In an action to recover damages for the breach of an alleged contract, the complaint is insufficient if it merely alleges a promise without averring its breach, or if it assigns a breach of something which is not alleged to have been promised.
Id. —Contract for Sale of Land—Refusal to Execute Agreement for Sale. —The action was brought to recover damages for the breach of a contract whereby the plaintiffs agreed to procure a purchaser of certain land belonging to the defendant, at a fixed price, to be paid in installments at stated times, in consideration of which the defendant promised to pay them a certain compensation. The complaint, after setting forth the contract, alleged that the plaintiffs found an intended purchaser, and assigned as a breach of the contract the refusal of the defendant to join with the purchaser in the execution of an agreement for the sale of the land embodying the terms upon which the defendant had authorized the plaintiffs to negotiate the sale. Meld, that the refusal of the defendant to execute the agreement was not a breach of the contract.
Foote, C. This was an action brought by James L. Hussey and F. 0. M. Du Brutz against Isaac Jessup, to recover the sum of twenty-five thousand dollars for a breach of contract.
The original plaintiffs have died since the institution of this suit, and the administratrix of the one and the assignee of the other have become substituted parties to the record.
The trial court, sitting without a jury, rendered judg[76]ment for the sum of two thousand dollars and costs, and from that and an order refusing a new trial the defendant appeals.
The defendant contends that upon the face of the record the judgment is erroneous, because, as he alleges, said judgment was rendered on findings upon the first count of the complaint alone, which count does not state facts sufficient to constitute a cause of aetion.
The first count in the complaint is upon a special contract to procure a purchaser of a certain tract of land belonging to the defendant, at a certain fixed sum, for which the plaintiffs were to receive a certain compensation.
The second count is an ordinary count in debt for twenty-five thousand dollars, for work, labor, and services done and rendered.
The first count reads substantially as follows: That the defendant was the owner of a certain, tract of land in the village of San Rafael, Marin County, and being desirous of selling the same, entered into a contract with the plaintiffs that they should procure the formation of a corporation, which should purchase said land for the sum of twenty-five thousand dollars, to be paid in certain installments at certain stated times, etc.
And for the work and labor, skill, care, and diligence, journeys and attendances, of the said plaintiffs to be done, performed, and bestowed by them in and about the disposing of and settling of the said premises, in the manner and upon the terms aforesaid, and at his special instance and request, the said defendant then and there undertook and promised the plaintiffs to pay unto them whatever amount the purchaser should pay over and above the sum of twenty-five thousand dollars, with the interest thereon as aforesaid; and that the plaintiffs undertook the performance of the work on those terms, and procured the due incorporation of a corporation named the San Rafael Property Union, .and obtained from the latter an
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