Rhodes v. Newby

GRIFFIN, J. Plaintiffs filed their complaint in this action alleging breach of an agreement of sale of real and personal property. The breach here involved refers to the sale of about 1,500 smudge pots which it was agreed were located on the real property. The sale of the smudge pots was evidenced by a bill of sale.

It is alleged that only 594 usable smudge pots were found on the property and that $274 worth of fertilizer ordered by the seller was to be paid for by the purchaser and to be offset against the total obligation owed by such purchaser. Damages in the sum of $5,000 were asked.

The answer filed admitted that a smaller number than 1,500 smudge pots were found on the premises but claimed that there was a' separate later independent agreement that if it should appear that more pots were required for proper protection of the premises, defendants would supply them. The three affirmative defenses alleged in the answer were practically the same allegations set forth in defendants’ cross-complaint, which we will later discuss.

[582]On these issues the ease was set down for trial. At that time permission was granted to defendants to file a cross-complaint. The cross-complaint alleged that defendants and cross-complainants entered into the agreement to sell plaintiffs lot 61 and 1,500 smudge pots located thereon; that the deed and bill of sale were delivered and that in the same escrow defendants were acquiring the real and personal property described from one Jonas for the same price; that cross-complainants never counted the pots but believed that there were 1,500; that plaintiffs had an opportunity to count them; that if there was a lesser number than that set forth in the bill of sale it was a mutual mistake of the parties; that prior to the closing of the escrow defendants received a bill of sale of the pots located on the premises from Jonas and that bill of sale designated the number as 600; that defendants understood there were 1,500 pots on the premises; that plaintiffs and also defendants discovered the error and later defendants offered to do “what was right” and provide as many as were necessary to care for the grove; that plaintiffs agreed that it would be satisfactory to close the escrow on that basis; that plaintiff's have violated their agreement to waive the shortage by commencing this action and asking $5,000 in damages; that defendants believed plaintiffs would compromise their agreement on reasonable terms based on their requirements of smudge pots during the cold season ‘' just now closing. ’ ’ Cross-defendants then prayed for rescission of the entire agreement and deed to the real property and that the court determine the terms and amount defendants should restore to plaintiffs by reason of the rescission.