Burnett v. Kullak
Before: Searls
Synopsis
Vendor and Purchaser—'Contract of Sale—Description. — Description of land by name in a contract of sale is, or may be, sufficient if the boundaries are known and well defined. The name of the county where the land is situated is not essential if the description is otherwise sufficient.
Id. — Uncertainty of Terms—Specific Performance—Pleading.— When a contract of sale provides for payment of part of the purchase-money on mortgage, without specifying the terms of the mortgage, and the terms thereof are not made certain by reference in the contract, or by averment in the complaint, the agreement is too indefinite and uncertain to support a judgment for specific performance, and a demurrer to the complaint is properly sustained.
Searls, C. This action was brought to compel specific performance of a contract, which contract is in the following words: —
"Santa Barbara, Cal., April 19, 1887.
“Received of L. G. Burnett, the sum of one hundred dollars, being a deposit on the one-quarter interest of the Callis tract of forty-three and one half acres, or one-half interest of the undersigned in said tract. The terms of this transaction are four thousand dollars for said interest in said tract,—fifteen hundred dollars cash within sixteen days from date, as soon as L. G. Burnett is satisfied as to title of said tract, and two thousand five hundred dollars on mortgage, as per deed and agreement from Callis (Tom) to Kullak and Winchester. It is hereby agreed that Burnett shall pay the interest on a [536]certain promissory note for seventeen hundred dollars, at ten per cent interest from April 5th.
“Louis F. Kullak.”
The complaint alleges “that the said land mentioned therein as the Callis tract was at the date of said contract and still is commonly known and called by that name, and that the same is. situated in the Carpenteria valley, and contains forty-three and one half acres.”
It further alleges offer of performance on the part of plaintiff within the period prescribed by the agreement, and refusal of defendant to comply, etc.
A demurrer was interposed by defendant to the amended complaint, which was sustained by the court, and on the refusal of plaintiff to amend, judgment was entered in favor of defendant, from which judgment plaintiff appeals.
A glance at the agreement shows that it was loosely and inartificially drawn.
We are of opinion that the description of the premises might be held sufficient. A description of land by name is, or may be, sufficient if the boundaries are known and well defined. (Haley v. Amestoy, 44 Cal. 132; Truett v. Adams, 66 Cal. 218.)
The name of the county in which the land is situate may be useful as a part of the description, but, if otherwise sufficient, is not essential, as in a pleading where it usually performs the office of showing the subject-matter within the jurisdiction of the court.
In other respects we think the agreement and complaint fatally defective.
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