Eva v. McMahon

Belcher, C. C. On the fifteenth day of August, 1883, the defendant sold and conveyed to the plaintiff a tract of land in Contra Costa County, described as containing about two hundred acres. On the same day, defendants executed and delivered to plaintiff an agreement called “Exhibit A,” by which it was stipulated that they might remain in possession of the premises until the first day of October, 1883, and that if they should fail or neglect to surrender to the plaintiff the possession of the described premises on that day, then they would pay to him all costs, charges, and expenses to which he might be put to gain such possession, including a reasonable attorney fee, and would also pay the further sum of two [469]hundred dollars per month for such time as plaintiff might be deprived of or prevented from gaining possession of the premises, by reason of any act or thing done, suffered, or committed by the defendants while in possession thereof.

The description in the deed included some twenty acres which the defendants did not own. On the day named, they surrendered the possession of all the land which they did own, and the plaintiff took and afterward retained the possession thereof.

This action was commenced in May, 1885, to recover the sum of $3,880,— being $200 per month from October 1, 1883,—as “liquidated damages thus far incurred on account of deprivation of possession of part of said premises, and $250 attorney’s fee.” The defendants answered, and by way of cross-complaint set up certain facts which entitled them, as they claimed, to have the deed and agreement reformed so as to contain a true and correct description of the property sold by them to the plaintiff. No demurrer or answer to the cross-complaint was filed by the plaintiff.

The case was tried by the court, and judgment rendered in favor of the defendants; but their prayer for reformation was denied, because, as was said, “they did not sign the deed or agreement under any mistake as to their terms or meaning.” The plaintiff appealed from the judgment, and has brought the case here on the judgment roll.

The court found, among others, the following facts: In July, 1883, the defendants, being the owners in fee of a certain tract of land situated in the county of Contra Costa, and bounded on the north by the lands of one Blum, on the east by the lands of one Wagner, on the south by the lands of one Boland, and on the west by the lands of one Emmett, agreed to sell the same to plaintiff, he taking several days to examine the title thereof. During the time given plaintiff, in which he