SCOTT v. STOULIL (1982)

Plaintiff has appealed from a motion granted pursuant to Code of Civil Procedure section 631.8.   The trial court found that plaintiff failed to sustain his burden of proof to establish a cause of action for specific performance of an agreement to convey an easement over defendants' property.

Mr. Stokes owned six and one-half acres of residential property at 10330 McBroom, Sunland.   The property was landlocked, but Mr. Stokes had a permanent easement for personal use.   Since this easement was inadequate for development of the property, Mr. Stokes bought an adjoining acre and one-half parcel at 10156 McBroom ¹ which gave the larger property access to McBroom Street.

The Stoulils (hereinafter respondents) purchased 10156 McBroom from Mr. Stokes for $32,000.   Included in the escrow agreement were these special instructions:  “Seller reserves an option to purchase back ingress and egress along the northwest boundry [sic] of property extending from McBroom Street to the southwest boundry [sic] as may be required by the City of Los Angeles for future development of 6.5 acres commonly known as 10330 McBroom Street, Sunland, California described as follows:  Map 2543, Page 006, Parcel 014, Lot 64 of Hansen Heights.   Said option to remain in effect not later than two years from close of escrow.   The purchase price of ingress and egress to be pro-rated on present purchase price plus taxes and interest and any other expenses paid.   It is further agreed that any expenses connected with the purchase of ingress and egress will be at purchaser's expense and same purchase to be handled between princilpes [sic] without concern to escrow holder.”   Escrow closed on October 8, 1976.

On July 26, 1977, Mr. Stokes sold 10330 McBroom to G. Lewis Scott (hereinafter appellant) for $180,000.   On September 27, 1978, Mr. Stokes assigned the option to appellant.

On October 2, 1978, appellant's attorney wrote the respondents a letter which notified them that the option had been assigned to appellant and that he was exercising it.   A copy of the option agreement was enclosed.   A calculation was made using the price formula in the option agreement and respondents were informed that $6,500 was being held in trust for purchase of the easement.   The letter also said:  “This office has ascertained that an easement 30 feet in width will be required for the future development of his property.   The easement will run along a 318 foot boundary or will approximate 9,540 square feet ․”

Respondents refused to convey.   Appellant filed for specific performance and declaratory relief.

The court below found the option agreement ambiguous and too uncertain for specific performance, “in that it does not specify the nature, area, price or location of the ingress and egress right to be acquired.”   The phrase “as may be required by the City of Los Angeles for future development” was held to be ambiguous, indefinite and uncertain.   The option's ambiguities were construed against plaintiff as successor in interest to the optionee.   We reverse.

I

Appellant argues that the option agreement is or can be made sufficiently certain for specific performance.

 Specific performance will not be enforced if the terms of an agreement are not sufficiently certain to make the precise act which is to be done clearly ascertainable.  (Civ.Code, § 3390, subd. (5).)  The law does, nonetheless, recognize that the language of contracts cannot always be punctiliously exact.

“ ‘Vagueness of expression, indefiniteness and uncertainty as to any of the essential terms of an agreement, may prevent the creation of an enforceable contract ․  Vagueness, indefiniteness, and uncertainty are matters of degree, with no absolute standard for comparison.   It must be remembered that all modes of human expression are defective and inadequate ․  In considering expressions of agreement, the court must not hold the parties to some impossible, or ideal, or unusual standard.   It must take language as it is and people as they are.   All agreements have some degree of indefiniteness and some degree of uncertainty ․  [P]eople must be held to the promises they make.   The court must not be overly fearful of error;  it must not be pedantic or meticulous in interpretation of expressions ․  If the parties have concluded a transaction in which it appears that they intend to make a contract, the court should not frustrate their intention, if it is possible to reach a fair and just result, even though this requires a choice among conflicting meanings and the filling of some gaps that the parties have left ․  The application of such a rule as this is believed to come nearer to attaining the purpose of the contracting parties than any other, to give more business satisfaction and to make [a] contract a workable instrument.’  (Corbin on Contracts, vol. 1, § 95, pp. 288–292.)”  (Rivers v. Beadle (1960) 183 Cal.App.2d 691, 695–696, 7 Cal.Rptr. 170.)

 There are a number of California cases discussed below which have granted specific performance of contracts which did not meet a Platonic ideal of precise expression.   In these cases, extrinsic evidence was used to clarify the contract.   While the statute of frauds ² (Civ.Code, § 1624) and the parol evidence rule (Code Civ.Proc., §§ 1856, 1860, 1861) exclude extrinsic evidence which would vary, contradict or add to the terms of the written contract, both allow extrinsic evidence to identify “the subject matter of the contract from the written description, explain the meaning of ambiguous, abstruse, or technical expressions, and assist in interpreting the expressed intentions of the parties in the light of circumstances existing at the time of execution.”  (Ellis v. Klaff (1950) 96 Cal.App.2d 471, 476, 216 P.2d 15.)

 When a description of real property is too indefinite to enforce specific performance, the remedy can still be granted if there is a “means or key” in the written description by which the description can be made definite.  (Brooks v. Allard (1966) 244 Cal.App.2d 283, 53 Cal.Rptr. 82.)   In such cases there is no doubt that a contract exists;  the only issue is clarification of detail.

“[A] description of real property is sufficient even though the terms may be abstract and of a general nature, if with the assistance of external evidence the description, without being contradicted or added to, can be connected with and applied to the very property intended, to the exclusion of all other property (49 Am.Jur., supra, Statute of Frauds, § 348, p. 656).   Moreover, although parol evidence cannot be applied to effect an original location of property or to supply the required description thereof which the parties failed to provide, parol evidence may be used to connect a sufficient description in the memorandum to its actual location on the ground (Craig v. Zelian, 137 Cal. 105 [69 P. 853], 23 Cal.Jur.2d, Statute of Frauds, § 114, p. 374).”  (Vezaldenos v. Keller (1967) 254 Cal.App.2d 816, 823–824, 62 Cal.Rptr. 808.)

“The law is extremely liberal in favor of the sufficiency of descriptions of land in contracts to convey realty.   Much less certainty and particularity of description are required in a contract to sell land than in a deed conveying that land.”  (Calvi v. Bittner (1961) 198 Cal.App.2d 312, 315, 17 Cal.Rptr. 850.)

In Preble v. Abrahams (1891) 88 Cal. 245, 26 P. 99, parol evidence was used to clarify a written agreement to convey “forty acres of the eighty acre tract at Biggs.”   The situation of the parties and the surrounding circumstances of the making of the contract identified the 40 acres sufficiently.

In Towle v. Carmelo L. & C. Co. (1893) 99 Cal. 397, 400, 33 P. 1126, defendant's grantors were to convey to plaintiff “all that portion of the San Jose y Sur Chiquito rancho in his occupation and possession on the first day of July 1881.”   The court found this description sufficient.  “Upon the face of this agreement there is no uncertainty as to what land is to be conveyed, and nothing to suggest that there could be any difficulty in showing by parol evidence the exact location and particular boundaries of the land in the occupation and possession of the plaintiff on the day mentioned.”  (Ibid.)

When the agreement in Towle was entered into, the parties did not know what portions of the rancho would be in plaintiff's possession on the stated date.   The reference in the agreement was to an indeterminate standard.   It was, however, an objective, indeterminate standard.   On the agreed date, the land “in plaintiff's possession” could be precisely identified.

The situation in Towle is similar to the case before us.   The agreement to reserve a portion of the respondents' property “such as may be required by the City of Los Angeles for future development” of appellant's property, constituted an option to purchase an indeterminate portion that would be objectively determined at a future date.

Here, there is also a subjective element in that “future development” is left to the choice of the owner of the 6.5 acres.   Nevertheless, once the choice of development is made, the city's requirement for such development will determine the precise dimensions of the property to be conveyed.

In Hillman v. Hillman Land Co. (1947) 81 Cal.App.2d 174, 183 P.2d 730, plaintiff and defendants had a joint venture agreement to develop certain properties.   The parties had agreed they would construct “about 30 three-bedroom houses.”   The defendants claimed that the agreement was too uncertain to be specifically enforced.   The court disagreed.  “It is obvious that the number to be erected would depend upon the building and zoning laws and regulations and upon the portion of the property that would be required to be dedicated for street purposes.   When these conditions became definitely known more or fewer than 30 dwellings might have been permissible.   Such objections are hypertechnical and are without merit.”  (Id., at p. 185, 183 P.2d 730.)

The record before us makes it clear that the indeterminate nature of the city regulations were exactly what plaintiff's assignor bargained for in the option agreement.

Mr. Stokes offered the following testimony at trial:

“ ‘[I]f we wanted egress to the inner six and a half acres to McBroom, we would have to do whatever the City of Los Angeles required, and that was made very clear to Mr. Stoulil, and that was the agreement between him and myself, which was written up by Mr. Watkins.

“ ‘Q BY MR. ANDERSON:  ․  What type of approval did you have in mind and did you discuss [it] with Mr. Stoulil?

“ ‘A [By Mr. Stokes]  The type of approval that I had in mind was with the requirements of the City of Los Angeles, and I can't say what they were, because at the time—at the specific time that we would go and make application that we wanted that egress, they would say, “These are the things that have to be complied with,” and that's the only thing I could do.   I couldn't make anything specific, other than whatever the City of Los Angeles required.’ ”

Such testimony supports the inference that appellant's grantor feared that setting an absolute numerical width to the easement might prevent future development if the City of Los Angeles' requirements at the time of development mandated a wider easement.

The record reveals the arduous process involved in determining the requirements of the City of Los Angeles for development.   A tentative map is prepared and filed.   The city planning department and other agencies review it;  a public hearing is held.   The city planning department then approves or denies the plan.   A simplified procedure can be used for approval of a simple roadway, but such approval is at the developer's risk.   If the roadway later is too small to meet the city's requirements, then the developer is helpless.

While the record does not reveal the time or expense required to follow the necessary procedure, it does indicate that Mr. Stokes was familiar with the procedure.   There is nothing in the record to indicate that either of the parties intended that this procedure be carried out before the two-year option could be exercised.   Such a requirement could vitiate the option altogether if obtaining the requirements were the lengthy process it appears to be.

Respondents focused on the fact that appellant had not ascertained the requirements of the City of Los Angeles prior to exercising the option and up to the time of trial.   Appellant explained that he had been advised by a real estate agent and a general contractor with development experience in the area, not to proceed with the City of Los Angeles or any plans of subdivisions until he had exercised the option.  “They just declared they weren't interested in further discussions wasting their time, as the contractor generally said to me, until I had some way of getting in and out of that corner of the property.”

It is clear from his testimony that Mr. Stokes intended to develop his six and one-half acres and undertook to insure access for development, to any future buyer of his six and one-half acres.  “ ‘I told [Stoulil] I couldn't possibly sell it unless I had that access.   It was absolutely necessary, and if he could not give me that access I would not sell it.’ ”

 It was only by reserving an easement for an indeterminate amount of land that Mr. Stokes could achieve his purpose of providing access for future development.   It was precisely this indeterminacy which was of value to him as it afforded flexibility to comply with requirements of the future.   The width of the easement was indeterminate at the time of the option but would be made determinate by reference to an objective standard in the future.

Were Mr. Stokes unable to reserve an indeterminate easement to insure access to his property, he would have had to retain the entire acre and a half to protect his access to the larger property.   The law does not encourage such an unproductive use of land.

II

Respondents argue that the option was not exercised in accordance with its terms.

“It long has been the law in this state that in order for a plaintiff to maintain an action for specific performance it must be proved that there has been an acceptance of defendant's offer, which acceptance, to be effective, ‘must be unequivocal and positive and must comply with the terms of the offer.’  [Citations.]  The rule also has been stated thus:  ‘The acceptance must in every respect correspond with the offer, neither falling with nor going beyond the terms proposed, but exactly meeting them at all points, and closing with them just as they are stated․’  [Citations.]”  (Caldwell v. Dalaray Mines, Inc. (1945) 68 Cal.App.2d 180, 184, 156 P.2d 52.)

 Of course, respondents' argument is based upon the premise that obtaining the requirements of the City of Los Angeles was a condition precedent to the exercise of the option.   As discussed, we find no merit in this contention.

The letter giving the Stoulils notice that the option was to be exercised read, in pertinent part:

“As a part of [your purchase of 10156 McBroom], [Stokes] reserved an option to purchase back an easement for ingress and egress along the Northwest boundary of your property for future development of the 6.5 acres adjacent to your property.   Enclosed herein please find a copy of the escrow instructions of July 13, ․ [¶] ․ [¶]  This office has ascertained that an easement 30 feet in width will be required for the future development of his property.   The easement will run along a 318 foot boundary or will approximate 9,540 square feet (318 x 30).”

An estimate of cost based on the formula in the escrow instructions followed and notice that the sum of $6,500 was being held in trust to purchase the easement.   Notification was included that a surveyor was being retained “to determine the area of the easement and the total area of the property you purchased so that we can calculate the exact portion of your property being acquired.”  “Please take this letter as formal notice of exercise of the option called for in the July 13, 1976 escrow instructions and your agreement with [Stokes].”

It is true that the 30 feet “ascertained” by appellant's attorney appears to have no relationship to the requirements of the City of Los Angeles except that on the Standard Street Dimensions Plan the number 30 appears to be the width of one of the hillside streets.

Had respondents agreed to convey 30 feet, appellant might now be asking for reformation of the contract on the basis of mistake.   But the fact that appellant asked for 30 feet does not mean he was not conforming to the terms of the option.   Appellant gave formal notice that he was exercising the option that respondents had signed on July 13, 1976, and a copy of that option was enclosed.   Appellant may have been ill-advised to assume 30 feet would meet the requirements, but this did not invalidate the exercise of the option.³

III

 Finally, we turn to the trial court's decision that specific performance would be inequitable, unjust and unreasonable because appellant never obtained the requirements of the City of Los Angeles before trial.   We fail to see how respondents have suffered from appellant's omission.

The record reflects that appellant presented conflicting testimony by expert witnesses who offered differing estimates concerning the width of the easement to be conveyed.   Obviously, since no development plans had been submitted to, or approved by, the city, such testimony was purely speculative.

We find the conflicting testimony presented by appellant confusing and although not helpful, it was not detrimental to his right to specific performance of the contract.   The only extrinsic evidence which could have resolved the issue was testimony concerning the city's “requirements” for development of the appellant's parcel.   The record indicates that obtaining such requirements involves the expenditure of both time and money.   Appellant, under the circumstances here presented, should not be compelled to make such an expenditure on property in litigation as a condition precedent to exercising his option.

The judgment is reversed with directions to the trial court to enter a new and different judgment, awarding specific performance to appellant and ordering respondents to convey to appellant an easement along the northwest boundary of their property, in compliance with the terms of the option agreement, the width of which easement is to conform to the requirements of the City of Los Angeles to allow development of appellant's adjoining property.   The judgment shall also provide that respondents' duty to convey said easement shall be conditional upon appellant's having ascertained its dimensions within a reasonable period of time from the date of the judgment.

FOOTNOTES

1.   In his testimony, respondent referred to his property as 10158 McBroom.   Since all relevant documents and other testimony refer to 10156 McBroom, that designation will be used.

2.   The statute of frauds was not asserted below and cannot be raised for the first time on appeal.  (Aaker v. Smith (1948) 87 Cal.App.2d 36, 43, 196 P.2d 150;  Rutland, Edwards & Co. v. Cooke (1941) 44 Cal.App.2d 258, 262, 112 P.2d 287;  1 Witkin, Summary of Cal.Law (8th ed. 1973) Contracts, § 202, p. 183.)   It is not a factor in our decision, but the statute of frauds is discussed in the context of appellant's argument that “ ‘[t]hat is certain which can be made certain.’ ”

3.   Appellant testified that he did not know what his attorney meant by the phrase “an easement 30 feet in width.”   He testified that prior to October 8, 1976, he did not know the requirements of the City of Los Angeles for ingress and egress to the property.   Nor at the time of trial had the plaintiff tried to determine the requirements.

WOODS, Presiding Justice.

McCLOSKY and H.P. NELSON *, JJ., concur.