Gross v. Bank of America National Trust and Savings Ass'n

SHINN, J., pro tem. Plaintiff sues for damages for breach of a contract to convey real property. Sufficient allegations are found in the complaint of the making of the contract, the payment of the purchase money to defendant, and the delay of the defendant for more than one year thereafter to furnish the deed and evidence of the title contracted for. It appears from the complaint that the unpaid balance of the purchase price was agreed to be $1165.50, which sum was paid to defendant August 7, 1928, at which time plaintiff was assured that a deed and guarantee of title would be forthcoming. It is then alleged that plaintiff had an opportunity to sell the property at a profit of $5,925; that he informed defendant of that fact and entered into an 0 agreement of sale; that defendant “failed and refused” to make the conveyance until on or about August 17, 1929, and that because of the delay plaintiff lost the opportunity to sell the property and has been damaged in the sum of $5,925, the profits he would have made on the sale.

At the commencement of the trial objection was made to the introduction of evidence upon the ground that the complaint failed to state a cause of action and a motion was made by defendant for judgment on the pleadings. The objection was sustained, -the motion granted, and from the judgment entered plaintiff prosecutes this appeal.

The rulings of the court were correct. Under the provisions of section 3306 of the Civil Code damages in such a ease are limited to the price paid and the expenses properly [355]incurred in examining the title and preparing the necessary papers, adding thereto in case of bad faith the excess of the value over the price to be paid and the expenses properly incurred in preparing to enter upon the land.

It appears from the complaint that the entire damage alleged to have been sustained consisted of the claimed loss of profits. This is not an allowable measure of recovery in a case of this nature.

No bad faith on the part of the defendant was alleged nor was there allegation of facts from which bad faith could be inferred. It is true that a refusal to convey property pursuant to contract obligations, where such refusal is unexcused or wilful, is sufficient to show bad faith, but in the complaint in question no such facts were alleged. It was not alleged that defendant was able to furnish the deed and evidence of title or that it was unwilling to do so nor was anything alleged to show that its failure was not attributable to causes entirely beyond its control. The allegation that defendant “failed and refused” to furnish the deed and guarantee is entirely insufficient.