Morton v. Foss

SPENCE, J. In this action for specific performance of an alleged contract for the sale of real property, defendants had judgment and plaintiff appeals.

The defendant Marie J. Foss was the owner of the real property in question and the remaining defendants were joined only for the reason that they claimed interests in the real property deraigned through defendant Marie J. Foss after the time of the recording of the alleged contract between defendant Marie J. Foss and plaintiff. We will hereinafter use the word “defendant” in referring to defendant Marie J. Foss.

Defendant claimed in the trial court and now claims on this appeal that no contract was ever entered into by the parties as the minds of the parties never met; that the alleged contract was procured through fraud; and that the consideration of $4000 specified in the alleged contract was inadequate. The trial court found in favor of defendant on all of these issues. On this appeal, plaintiff’s main contention is that the evidence was insufficient to support said findings. In view of our conclusion that the trial court’s findings to the effect that no contract was ever entered into by the parties find ample support in the evidence, we deem it unnecessary to discuss the claims that the evidence was insufficient to support other findings.

[119]The findings of the trial court on the issue under discussion were as follows:

“That it is true that on the 18th day of September, 1939, plaintiff herein caused to be submitted for approval by B. S. Preston an agreement to purchase certain real property situate in the City and County of San Francisco, State of California, belonging to the defendant, Marie J. Foss. That it is true that E. S. Preston, as a real estate broker was appointed and constituted the agent for the seller, Marie J. Foss, on or about the 12th day of June, 1939, and acted for said Marie J. Foss as such agent. That it is true that on or about the 18th day of September, 1939, and at the time said E. S. Preston presented for signature the proposed agreement to purchase said real property by A. W. Morton, said E. S. Preston acted as the agent and real estate broker for both Marie J. Foss and A. W. Morton. That it is also true that at the time said agreement was submitted for approval said agreement contained the words ‘twenty days’ from the date of confirmation of the sale to allow the purchaser to examine the title; that on the 20th day of September, 1939, said Marie J. Foss caused said words ‘twenty days’ to be stricken out and the words ‘5 ds’ inserted and initialed ‘M. J. F.’ and with said change said defendant Marie J. Foss approved said contract of purchase.