Dake v. Smith

DORAN, J. This is an appeal from the order sustaining cross-defendants’ demurrer to cross-complainant’s third amended cross-complaint without leave to amend and from the judgment that followed.

The action is the result of a transaction for the purchase and sale of real estate. As recited in appellant’s brief, “This is an action by Plaintiffs, sellers of certain real estate:

“(a) To compel specific performance of a purported purchase agreement for real estate (for the sum of $45,000.00);

[809]“ (b) To require the payment of $4,500.00 brokerage fee into Court by the bank holding same;

“ (c) For $50.00 per month rental for the property pending the Court’s decision, and following Plaintiff's Notice of Rescission.

“Defendant and Cross-Complainant R. L. P. Smith served a Notice of Rescission upon the Plaintiff before the action was commenced, which fact is alleged in the Third Amended Cross-Complaint.

“Defendant R. L. P. Smith answered and filed a Cross-Complaint against the brokers doing business as Charles B. Hopper Associates, and against the Security-First National Bank for rescission to recover the deposit of $4,500.00 cash made by Defendant and Cross-Complainant. This Cross-Complaint was amended three times, and it is the Third Amended Cross-Complaint which is before the Court on appeal.

‘ ‘ Cross-Defendants Charles B. Hopper Associates demurred specifically to both causes of action in the Third Amended Cross-Complaint on the ground that neither cause of action set forth facts sufficient to constitute a cause of action, and upon the ground of uncertainty. The trial court sustained the Demurrer without leave to amend.”

Briefly, it appears from the cross-complaint that the Charles B. Hopper Associates represented the seller in the transaction. The cross-complaint alleges, as correctly recited in appellant’s brief, that Smith visited the seller’s broker and stated, “That he wanted to buy a place that was immediately contiguous to unimproved and unrestricted terrain where he could ride his horse; that he wanted to buy a place that was immediately contiguous to unimproved and unrestricted terrain approachable without having to ride over paved streets or restricted private property; that he wanted unimproved and unrestricted hill country where there would be no interference or restrictions by fences or private estates.” The cross-complaint further alleges that in reply to Smith’s statement, “That Defendants had exactly what this Cross-Complainant wanted; that it was made to order for Cross-Complainant’s use; that it complied with all of Cross-Complainant’s requirements as this Cross-Complainant had stated his requirements and described his needs to the said R. V. Crowe (the broker) which are particularly set forth in Paragraph VI hereof.” Thee cross-complaint further alleges that appellant then drove to the area where the property described by the broker was located and it appeared from the highway,