PAUL v. LAYNE BOWLER CORPORATION (1937)

Plaintiff instituted this action to recover damages for breach of an oral contract to execute a written lease to farming property for a term of five years. Apparently demurrers to plaintiff's complaint and his first amended complaint had been argued and sustained. A demurrer was overruled to the second amended complaint, and an answer and amended answer were filed, as well as a cross–complaint.

When the case was called for trial, counsel for plaintiff made a short opening statement, at the conclusion of which counsel for defendant made the following motion: “May it please the Court, at this time the defendant moves for judgment upon the opening statement of counsel, upon the ground that an action for damages cannot be predicated upon the breach of an oral contract to enter into a written lease.”

The motion was granted and a judgment for defendant was entered. Plaintiff has appealed from the judgment and from the order denying his motion for a new trial. Such an order is not appealable. Section 963, Code Civ.Proc. (as amended by St.1933, p. 2472).

The rule of importance here, governing the granting of a motion for nonsuit, is set forth in 9 California Jurisprudence, 548 et seq., as follows:

“Most, if not all, the considerations requiring a party objecting to the introduction of testimony to state precisely the grounds of his objection are applicable to a motion for nonsuit. It is therefore settled law that a motion for a nonsuit must point the attention of the court and counsel to the precise grounds upon which it is made. It is error to grant a motion when the grounds therefor are not stated, although the error is immaterial if the defects are such that they cannot be corrected even if specifically pointed out. So also if particular grounds are stated, the motion will be overruled if they are not tenable, notwithstanding there may have been other good and sufficient reasons for granting a nonsuit. And where a complaint states several causes of action and the motion is directed to all of them, the motion is not tenable unless, as to all, there is a failure of proof. When specifying the grounds of the motion it is not sufficient to state generally that there is no evidence before the court justifying it in granting any relief to the plaintiff, or that plaintiff has failed to prove a sufficient case. The motion should show wherein the plaintiff failed to prove its case or why he is not entitled to recover.

“A nonsuit may be granted upon a plaintiff's opening statement when it is clear that he has undertaken to state all the facts which he expects to prove, and it is plainly evident that the facts proved will not constitute a cause of action. This practice, however, is a dangerous one and can be upheld only in the case stated.”

As defendant specified, in his motion, the sole ground “that an action for damages cannot be predicated upon the breach of an oral contract to enter into a written lease,” that was the only ground upon which the motion could have been granted, and presents the only question we need consider here.

It seems to be the settled law in California that where the parties have entered into a valid oral contract to execute a written lease to real property, and where there has been a partial performance of the oral contract, and where the facts disclose circumstances under which, in fairness and good conscience, the party refusing to execute the written lease should not be permitted to plead the statute of frauds, the innocent party has a remedy, either at law for damages, or in equity for specific performance, he having the right to elect his remedy. McCarger v. Rood, 47 Cal. 138; Clark v. Clark, 49 Cal. 586; Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88, 134 Am.St.Rep. 154; Martinez v. Yancy, 40 Cal.App. 503, 180 P. 945; Holstrom v. Mullen, 84 Cal.App. 1, 257 P. 545; Peterson v. Larquier, 84 Cal.App. 174, 257 P. 873; Keller v. Richbart, 130 Cal.App. 296, 20 P.(2d) 55. It follows that as the sole ground stated in the motion for nonsuit is not tenable under the law of this state the trial judge should have denied the motion and should have proceeded with the trial.

It should also be noted that in making his opening statement counsel for plaintiff did not purport to state all of the facts he expected to prove. He opened his statement as follows: “I don't know whether the Court wishes a short introductory statement or not. The Court had it before it on the demurrers that were filed and decided. However, there is perhaps one or two things I would like to call to the Court's attention before we do begin.”

Under these circumstances the motion should have been denied. The following rule announced by the Supreme Court in Bias v. Reed, 169 Cal. 33, 145 P. 516, 517, is applicable here: “It is no doubt true, as is argued by the appellants, that the practice of directing a verdict, in advance of the introduction of evidence, upon the opening statement of one or the other party, is a dangerous one, and that an order granting such motion can be upheld only where it is clear that counsel has undertaken to state all of the facts which he expects to prove, and it is plainly evident that the facts thus to be proved will not constitute a cause of action or a defense, as the case may be. ‘We would observe,’ said this court in Emmerson v. Weeks, 58 Cal. 382, ‘that it would be much better not to nonsuit on an opening statement, unless it is clearly made, and it is * * * evident therefrom that no case can be made out.”’

Counsel for defendant urges that the judgment must be affirmed under the rule laid down in Nicholl v. Littlefield, 60 Cal. 238, where the plaintiff was nonsuited on his opening statement and the record on appeal contained neither a bill of exceptions nor statement on appeal. In the instant case the reporter's transcript was filed after the respondent's brief and ten months after the filing of the clerk's transcript. The reason for this unusual delay does not appear, but as the reporter's transcript is duly certified we assume that it is a proper part of the record on appeal. Bensen v. Olender, 74 Cal.App. 273, 240 P. 61; Laykin v. Karsh, 117 Cal.App. 687, 4 P.(2d) 619; Weaver v. Shell Oil Co., 124 Cal.App. 233, 12 P.(2d) 167; Stenzel v. Kronick, 201 Cal. 26, 255 P. 199; Ritter v. Ritter, 208 Cal. 27, 280 P. 112. Therefore, we may consider the matters appearing in this transcript and for this reason the Nicholl Case is not controlling here.

The judgment is reversed. The appeal from the order denying the motion for new trial is dismissed.

MARKS, Justice.

We concur: BARNARD, P. J.; JENNINGS, J.