Gauchet v. McGinnis

THOMPSON, J. The plaintiff: has appealed from a judgment which was rendered against her in a suit for the return [8]of money paid on a contract to purchase real property on the ground that the agreement was breached by refusal of the vendor to execute and deliver a deed of conveyance upon payment of one-half of the purchase price therefor. The defendant denied the alleged breach and in a cross-complaint asked to reform the contract by inserting therein a clause which was omitted by mutual mistake to the effect that the vendee agreed to execute and deliver to the vendor a trust deed to secure the balance of the indebtedness as a condition precedent entitling her to the deed of conveyance upon the payment of one-half of the purchase price of the property.

It is asserted the findings and judgment are not supported by the evidence for the reason that it does not appear that a mutual mistake of both parties occurred with respect to the omitted clause of the contract, and that there is a fatal variance between the allegations of the cross-complaint and the findings and decree authorizing the reformation of the agreement.

The defendant owns lot 4, tract 677 of Los Angeles County, according to the map thereof recorded in book 15 at page 159 of maps of that county. May 18, 1928, the defendant contracted in writing to sell that lot to the plaintiff for $12,500. The instrument provided for the payment of $3,500 cash and $100 each month thereafter until the purchase price was fully paid, together with 7 per cent interest on deferred payments. The proposed agreement as it was originally prepared provided that upon full payment of the purchase price the vendor would execute and deliver a good and sufficient deed of conveyance to the property. Before the contract was signed by the respective parties, by mutual agreement it was changed so as to read that when one-half of the purchase price had been paid pursuant to the terms of the agreement, the vendor would execute and deliver to the purchaser a good and sufficient deed of conveyance therefor together with a guaranty certificate of clear title. This change was made at the request of the purchaser. The defendant testified in that regard:

‘ ‘ Q. Now, calling your attention to the change made on the second page of the contract, ‘on receiving payment for one-half of amount of contract’, do you remember that being inserted in there? A. Yes, I do. Q. And was there any conversation prior to the time that particular thing was inserted? A. Yes, there was. Q. Between yourself and Mrs.