MILLER ET AL v. DYER ET AL (1941)

This is an action for specific performance. Demurrers to a second amended complaint were sustained with leave to amend. The plaintiff declined to amend and a judgment of dismissal was entered, from which the plaintiffs have appealed.

The complaint alleged that the plaintiff Miller owned certain real property in Los Angeles county; that the defendants Hector M. and Elizabeth H. Dyer owned certain real property in Orange county, which is referred to as parcel 1; that the defendant Mabelle M. Dyer owned two other parcels of land in Orange county referred to as parcel 2 and parcel 3; and that on October 17, 1940, the plaintiffs entered into a written contract with Mabelle M. Dyer for the exchange of these properties. It is alleged that by this contract Mabelle M. Dyer agreed to convey parcels 2 and 3 to the plaintiff Miller, to secure a loan of $2,000 on parcel 1 and pay that $2,000 to the plaintiffs, and to convey parcel 1 to plaintiff Wallis subject to said $2,000 incumbrance, and that the plaintiffs agreed to convey to Mabelle M. Dyer the Los Angeles property owned by Miller.

It is then alleged that at the same time defendant Mabelle M. Dyer entered into a written contract with defendants Hector M. Dyer and wife, whereby the latter agreed to convey parcel 1 to Mabelle M. Dyer and she agreed to pay therefor by executing and delivering to them a $3,000 trust deed on the property she was to receive from the plaintiffs. It is further alleged that the plaintiffs and the defendants Dyer entered into an escrow at a bank with appropriate written instructions; that Hector M. Dyer and wife executed and delivered into this escrow, with intention of passing title, a deed conveying parcel 1 to Mabelle M. Dyer; that this deed was returned to Hector M. Dyer and wife for the purpose of making a correction therein; that Hector M. Dyer and wife are now in possession of this deed and refuse to make said correction or redeliver the deed into escrow; that Mabelle M. Dyer executed and delivered a trust deed on parcel 1 to defendant Laguna Federal Savings & Loan Association and arranged to borrow $2,000 on that property; that this loan association refused to make that loan unless $500 was deducted and retained for the purpose of making certain repairs on the property; that this loan association deposited $1,500 with the defendant title company to be held for the benefit of the persons entitled thereto upon the completion of the entire transaction; that in view of this deduction by this loan association Mabelle M. Dyer orally promised to make up this $500 and deposit the same in said escrow; that the plaintiff Miller placed in escrow a deed conveying his Los Angeles property to the defendant Mabelle M. Dyer; and that the defendant Mabelle M. Dyer placed in escrow a deed from herself to plaintiff Wallis covering parcel 1 and another deed from herself to plaintiff Miller conveying parcels 2 and 3.

It is then alleged that the defendants Dyer have repudiated the transaction and refuse to proceed further therewith; that the value of the Los Angeles property which the plaintiffs were to convey to Mabelle M. Dyer is approximately the same as the value of the properties, plus the cash, which she was to transfer to them; and that the plaintiffs told defendant Mabelle M. Dyer that they were in default on a trust deed on another piece of property they owned and needed $1,000 in cash to “reinstate the same”, that they must have this cash before November 10, 1940, that this cash must come from the transaction here in question, and that if they received the cash by that date they could carry out another agreement whereby they would secure still other property which was worth $4,000. The prayer is for specific performance and that they recover damages in the amount of $4,000 against all of the defendants Dyer.

It clearly appears that the plaintiffs cannot specifically enforce this contract as against the defendants Hector M. Dyer and his wife since, so far as alleged in the complaint, these defendants have no contract with the plaintiffs and have never agreed to convey parcel 1, which they own, to the plaintiffs. It is equally clear that the contract cannot be specifically enforced as against the defendant Mabelle M. Dyer since she does not own parcel 1, and it is specifically alleged that the owners of that property refuse to convey it to her. It not only appears that Mabelle M. Dyer has not title to parcel 1 and that she cannot specifically perform her contract in this respect, but it also appears that even if she could get the title to parcel 1 she has been unable to obtain the $2,000 loan on that property upon the terms required by the contract, and that specific performance of the contract would give to the plaintiffs property having a value of $500 in excess of that to which they were entitled under the contract.

No attempt was made to allege a cause of action for damages for breach of Mabelle M. Dyer's contract to convey the three parcels in exchange for the property owned by one of the plaintiffs. There is, however, an incidental attempt to allege a cause of action for damages against all of the defendants Dyer on account of not closing the deal by a specific date, although these allegations seem to affect only the defendant Mabelle M. Dyer. It is alleged that the plaintiffs told her that they needed $1,000 before November 10, 1940, that they had no means of getting it other than through this transaction, and that if they obtained it by that date they would be able to make another deal whereby they would obtain other property of the value of $4,000. There is no allegation that she agreed to complete the transaction by November 10, 1940, or at any other specific time, and no cause of action in this regard is stated. It may be observed that in view of the nature of this transaction it would hardly be reasonable to expect the entire transaction to be closed within twenty–four days after the making of the contract, and it is significant that the parties did not undertake to do so. It is unnecessary to go into several other reasons for holding that the complaint did not state any cause of action for damages.

Several other points raised by the respondents in support of the judgment, including misjoinder of parties and improperly uniting two causes of action which are not separately stated, require no consideration in view of what has been said with respect to the controlling questions.

The judgment is affirmed.

BARNARD, Presiding Justice.

MARKS and GRIFFIN, JJ. concurred.