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District Court of Appeal, Second District, Division 1, California.

WILK v. VENCILL et ux.

Civ. 15467.

Decided: November 01, 1946

Albert G. Bergman, of Los Angeles, for appellant. Samuel H. Robinson and Harold M. Heimbaugh, both of Los Angeles, for respondents.

This is an appeal from a judgment in the Superior Court, in and for the County of Los Angeles, dismissing an action for specific performance or damages, after the defendants' and respondents' demurrers to plaintiff's and appellant's fourth amended complaint had been sustained without leave to amend and a judgment of dismissal was entered thereon in favor of defendants and respondents herein.

The complaint in the action, which is for specific performance, alleges that, defendants, who are husband and wife, are joint owners of certain described property; that plaintiff entered into a written agreement with Charles A. Vencill, the husband, for the purchase and sale of said property, in words and figures as follows:

‘Received of Nat Wilk, the sum of Ten Dollars as part payment for my real property located at 425 North Martel Ave., Los Angeles, California.

‘The entire price to be paid for the above described property is the sum of Eighty-Nine Hundred Dollars and to be paid as follows:

‘Five Thousand Dollars Cash in an escrow to be commenced within thirty days after a property settlement agreement is executed between the undersigned seller herein and his wife.

‘Also this property to be sold to said Nat Wilk subject to two encumbrances wherein their total unpaid balances is the sum of approximately Thirty-Nine Hundred Dollars.

‘Further this within option to purchase the above described property is made with the specific understanding that the undersign's wife will surrender possession thereof when and if she is able to procure other living accommodations.

‘Dated July 24, 1945.

‘Chas. A. Vencill

‘I accept the within option.

‘July 24, 1945.

‘Nat Wilk’

It is further alleged that Mabel Vencill, the wife, orally agreed to sign the above document, but informed plaintiff that, ‘after said declaration, further informed this plaintiff that she would prefer to defer her execution of the sales agreement made by and between this plaintiff and Charles A. Vencill, and so accepted, consented and agreed to by defendant, Mabel Vencill, as above described, until she and her husband completed the execution and delivery as between themselves, of their said property settlement agreement, which defendant Mabel Vencill informed this plaintiff she expected would be done, and completed within approximately one week after said date of July 24, 1945, and that she would immediately thereafter sign the above described agreement for the sale by defendants, and both of them, of the above described real property to this plaintiff’; that later, on demand, said Mabel Vencill refused to sign the agreement. It is also alleged that said representations so made by Mabel Vencill were false and untrue and made fraudulently and without ‘intention of performing the same.’ It is also alleged that plaintiff lost an opportunity to purchase another home in the same neighborhood by reason of defendants' conduct, resulting in damages in the sum of $7,500. Additional appropriate details were included in the complaint. The prayer was for specific performance or, ‘if specific performance herein cannot be decreed,’ then for the alleged damages.

It is contended on appeal that the court erred in sustaining the demurrer without leave to amend. It is argued in connection with this contention that, if permitted, deficiencies could be supplied that would set up a valid cause of action.

The complaint on its face affirmatively exposes such contention as a legal impossibility. The contract relied on was void ab initio. And a void contract manifestly cannot be specifically enforced. The property described was owned in joint tenancy; the contract was signed by only one of the owners, hence the execution of the instrument was incomplete. Barber v. Burrows 51 Cal. 404. It is true that this fact does not appear upon the face of the instrument, but the complaint avers it, and the effect is the same.

The attempt to set up a cause of action for damages is, necessarily, based on breach of contract. Here, the complaint again affirmatively shows that there was no contract to ‘breach.’ And it follows, therefore, that no such action will lie. The contention that the wife's promise to sign, followed by the refusal to do so, amounts to fraud and operates as an estoppel is without merit. The conduct of the wife, as appears affirmatively in the allegations, in no sense amounted to fraud or deceit. Moreover, a promise to execute an agreement required to be in writing, must also be in writing. There was no valid agreement between plaintiff and defendant Mabel Vencill; no valid obligations were imposed and no privileges upon either in behalf of the other were ever conferred. See Mullarky v. Young 9 Cal.App. 686, 100 P. 709. All of the foregoing appears affirmatively in plaintiff's complaint, from which it follows that nothing could be added thereto by amendment that could establish a cause of action.

The judgment is therefore affirmed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.