Marriner v. Dennison
Before: Belcher
Synopsis
Appeal from an order of the Superior Court of Los Angeles County denying a new trial.
The action is for damages for breach of a contract between the plaintiff and defendant for the exchange of lands, executed January 13, 1887, the body of which was in the following words: —
“Vineland, Cal., Jan. 13, 1887.
“This agreement, made this day between G. L. Dennison of Los Angeles, and J. U. Marriner of Vineland, California, is as follows: Said Dennison agrees to convey to said Marriner lots 1, 2, 33, 35, 60, and 59, in his subdivision of the McGee tract, and for same six lots said Marriner agrees to convey to said Dennison the ten acres, with new house and improvements built by him, and lot No. 52, building lots in Malden, Massachusetts, bought of E. S. Converse. Size of lot, 6,440 square feet; viz., 57^ feet by 115 feet deep.”
The amended complaint set forth a more particular description and identification, by extrinsic matter, of the lands mentioned in the contract, and alleged a full performance of all conditions on plaintiff’s part, and a breach of the contract on the part of the defendant, and that plaintiff sustained damages by such breach in the sum of three thousand five hundred dollars, which was alleged to be the amount of increase in value of the defendant’s lots over that of the property to be exchanged therefor. The amended complaint makes no reference to any other contract, and omits the matter alleged in the original complaint as to fraud of the defendant in procuring a substituted contract, as stated in the opinion rendered on the former appeal (78 Cal. 205, 206). The answer, besides other defenses, alleged that on the fourteenth day of March, 1887, the plaintiff and defendant mutually rescinded the said contract of January 13,1887, and substituted therefor the following contract: —
“Pasadena, Cal., March 14, 1887.
“This agreement, made this day, is as follows: J. U. Marriner agrees to sell me his house and ten acres of land in Azusa in exchange for 200 feet on Fair Oaks Avenue, by 150 feet deep, to be taken from the seventy acres bought from Mr. Banta, about 1,250 feet from north line, and a deed to be made in ten days.
[Signed] “J. U. Marriner.”
The answer further alleged that the said ten acres is the same ten acres referred to in the previous contract, and further describes and identifies by extrinsic averments the land agreed to be sold, and also the land to be exchanged therefor, which was alleged to be a piece of land owned by the defendant, in the city of Pasadena, which defendant alleged that he has been ready and willing to convey, and has tendered a conveyance to plaintiff, but that plaintiff refused to accept.
Further facts are stated in the opinion rendered in this case, and in the opinion rendered upon the former appeal (78 Cal. 204-207).
Belcher, C. This is the second appeal in this case. The decision on the first appeal is reported in 78 Cal. 202. After the case was sent back for a new trial, the pleadings were amended so as to conform to that decision. The case was then tried before a jury, and the result was a verdict and judgment in favor of the plaintiff, for two thousand five hundred dollars damages. The defendant moved for a new trial, which was denied, and has appealed from the order denying his motion.
We think a new trial should have been granted.
It was held, on the former appeal, that the plaintiff could not rescind the contract of March 14, 1887, and recover for a breach of the contract of January 13,1887, even though he was induced to make the change by [558]fraud, unless he was damaged by the change; and it was said: “It was necessary for the plaintiff to allege and prove that the last property contracted for was of less value than the first, or other facts sufficient to show that he was damaged by the making of the last contract.”
And on the new trial the court instructed the jury that they could not find for the plaintiff, unless he had proved by a preponderance of evidence that he was damaged by the agreement to take the lots last contracted for in lieu of those first contracted for.
It is clear, we think, that the plaintiff did not prove by a preponderance of evidence, if at all, that he was damaged by the making of the last contract in the sum of two thousand five hundred dollars, or in any appreciable sum; and if this be so, the damages allowed should at most have been only nominal.
To prove the value of the six McGee lots which were to be conveyed to him under the first contract, plaintiff called as a witness one Scott, who testified that on the 9th of March, 1887, defendant executed a written agreement to sell him the Dennison subdivision of the McGee tract in Pasadena, containing ten acres, and subdivided into sixty lots; that he was to pay for the six lots in question, in the aggregate, six thousand five hundred dollars; that in making the purchase he was acting for other parties, who represented the Santa Fé Railroad Company; and that the company wanted the property for railroad purposes. He then went on to testify that he did not think the lots were worth what he agreed to give, and told the parties he was buying for, at the time, that they were wild to give any such price for the property; that it was not worth half of it; that the inside lots were really worth about $400, and the corner lots about $450.
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