§ 454. JUDGMENTS [OR DECREES]. FORM No. 1068-For plaintiff. (In Noyes v. Schlegel, 9 Cal. App. 516; 99 Pac. 726.) This cause coming on regularly for trial on the 6th day of January. 1908, before the court, without a jury, a jury having been expressly waived, John W. Kemp appearing as attorney for the plaintiff, and Frank M. Porter and Trusten P. Dyer appearing as attorneys for the defendants, oral and documentary evidence was introduced on behalf of the plaintiff and the defendants, and the same having been closed, the court files its findings and decisions in writing, and orders judgment in favor of the plaintiff. Wherefore, by reason of the law, and the findings aforesaid: It is hereby ordered, adjudged, and decreed, that the plaintiff, L. B. Noyes, is the owner in fee-simple, and entitled to a conveyance of lots [here described], and that the defendant be and he is hereby required to execute and deliver to the plaintiff a good and sufficient deed to the said property, conveying the same to the plaintiff free and clear of all encumbrances. [It is further ordered, adjudged, and decreed, that upon the payment to the said defendant of the sum of $625 by the plaintiff herein, that the defendant execute and deliver to the plaintiff a good and sufficient deed of conveyance, conveying to the plaintiff lots (here other lots involved in the action are described) free and clear of all encumbrances.] It is further ordered, adjudged, and decreed, if the said L. Schlegel shall fail, refuse, and neglect to make such conveyance, that the clerk of this court be and he is hereby appointed a commissioner to execute such deed or deeds, and that such transfer when made by such clerk appointed as such commissioner shall operate as a transfer to plaintiff of the said premises. It is further ordered, adjudged, and decreed, that upon the payment of the said sum of $625 as aforesaid, and upon the execution of the said deed of conveyance by defendant, or in lieu thereof by the clerk of this court as hereinbefore provided, the defendant be and he is hereby restrained and enjoined from thereafter asserting any right, title, or interest in or to any of the property described in plaintiff's complaint. It is further ordered, adjudged, and decreed, that the plaintiff do have and recover of the defendant L. Schlegel his necessary costs and disbursements incurred in this action, taxed at $34.60. Dated this 20th day of January, 1908. FORM No. 1069-For defendant. George H. Hutton, Judge of Superior Court. (In Cummings v. Roeth, 10 Cal. App. 144; 101 Pac. 434.) [Title of court and cause.] [After preliminary recitals:] Wherefore, by reason of the law and by the findings aforesaid, it is by the court hereby ordered, adjudged, and decreed, that plaintiff take nothing by her action herein against the defendants, or either of them, and that defendants do have and recover of and from the plaintiff their costs and disbursements incurred herein, amounting to the sum of $69. Judgment entered this 4th day of September, 1907. John P. Cook, Clerk. By A. A. Rogers, Deputy Clerk. FORM No. 1070-Decree quieting title of cross-complainant in an action commenced by plaintiff for specific performance. (In Gish v. Ferrea, 10 Cal. App. 53; 101 Pac. 27.) [Title of court and cause.] This cause came on regularly to be heard on the 21st day of August, 1907, H. D. Newhouse appearing for plaintiff, and Berry & Brady appearing for defendants, and for cross-complainant, J. P. LeFevre. The court having heard all the evidence and proofs produced herein, and having considered the same, and being fully advised in the premises, and it appearing therefrom that during the month of September, 1905, defendant Virginia Ferrea was the owner, in possession of, and entitled to the possession of, that certain lot [here follows description of said property]. That on or about the 9th day of February, 1906, by mesne conveyances, the said property was sold to defendant J. P. LeFevre, who was also the cross-complainant herein, and that the said J. P. LeFevre now is, and ever since said 9th day of February, 1906, has been, the owner in fee-simple and entitled to the possession of the said lot, piece, and parcel of land, together with the improvements thereon; that the claim of Mary F. Gish in and to the said property is without any right whatever, and that the said Mary F. Gish has no estate, right, title, or interest in or to said land or premises or in any part thereof. It is therefore hereby ordered, adjudged, and decreed, that defendants herein have judgment for their costs in this action, and that plaintiff take nothing by said action. It is further ordered, adjudged, and decreed, that J. P. LeFevre, the cross-complainant herein, is the owner in fee-simple absolute of the above-described premises and every part thereof, and the improvements thereon, and that Mary F. Gish has no estate or interest in or to said premises or any part thereof, or the improvements thereon, and that the said Mary F. Gish be forever debarred from asserting any claim whatever in or to said land or premises or any part thereof, or the improvements thereon, adverse to the interest of cross-complainant, J. P. LeFevre. Let judgment be entered accordingly. Done in open court, this 15th day of April, 1908. § 455. ANNOTATIONS.-Specific performance. 1, 2. Mutuality of remedy. 3. Limitations of the remedy.-Reference. J. M. Seawell, Judge. 4. Agreement to give personal services not enforceable specifically. 5. Contract to enforce transfer of corporation stock. 6. Contract for return of stock.-When enforceable. 7. Party can not both rescind and affirm. 8. Action in personam. 9. Right, when negatived by the bill itself. 10. Joinder with action for damages. 11, 12. Essential averments.-Complaint deficient. 13-15. Adequate consideration must be shown. 16. Distinction as between executed and executory contracts. 17. Contracts must be equitable. 18-21. Fairness of contract must affirmatively appear. 22. Bill in equity to redeem personal property. 23. Tender.-When unnecessary to plead. 1. Mutuality of remedy.-Equity will not enforce a contract where there is want of mutuality in reference to the remedy sought to be enforced: Los Angeles & B. O. & D. Co. v. Occidental Oil Co., 144 Cal. 528, 532, 78 Pac. 25. 2. Specific performance of a contract can not be enforced by a party unless he himself is able to comply with the conditions of the contract upon which he relies: Coonrod v. Studebaker, 53 Wash. 32, 101 Pac. 489, 490. 3. Limitations of the remedy of specific performance of contracts: See Turley v. Thomas (Nev.), 101 Pac. 568, 574579. 4. Agreement to give personal services not enforceable specifically.-Agreement of a daughter to support and give personal care and attention to her mother during the remainder of her life in consideration of receiving from the mother a deed of certain property can not be specifically enforced by the mother: Grimmer v. Carlton, 93 Cal. 189, 194, 28 Pac. 1043, 27 Am. St. Rep. 171. See Cooper v. Pena, 21 Cal. 403; King v. Gildersleeve, 79 Cal. 504, 509, 21 Pac. 961. 5. Contract to enforce transfer of corporation stock.-A corporation is not a necessary party defendant in an action against a stockholder to specifically enforce a contract to transfer stock to the plaintiff and to compel him to account for and pay over dividends, although it is not improper to make the corporation a defendant: Sayward v. Houghton, 82 Cal. 628, 630, 23 Pac. 120. 6. Contract for return of stock.-When enforceable. Specific performance of contract for return of stock in corporation pledged as security for debt may be enforced by the pledgeor upon payment or tender of the amount of the indebtedness where the stock has no market value and where no other shares of such corporation are in the market for sale: Krouse v. Woodward, 110 Cal. 638, 642, 42 Pac. 1084. See Senter v. Davis, 38 Cal. 450; Adams v. Messinger, 147 Mass. 185, 17 N. E. 491, 9 Am. St. Rep. 679; Cushman v. Thayer Mfg. Co., 76 N. Y. 365, 32 Am. Rep. 315; Johnson v. Brooks, 93 N. Y. 337, 342. 7. Party can not both rescind and affirm.-A party can not, while he retains the benefit of a substantial performance, totally defeat an action for the price which he has agreed to pay, or for specific performance on his part, on the ground that the plaintiff has not completed the contract. He can not at the same time affirm the contract by retaining its benefits and rescind it by repudiating its burdens: German Sav. Inst. v. DeLaVergne R. M. Co., 70 Fed. 146, 17 C. C. A. 34, cited in Turley v. Thomas, 31 Nev. 181, 101 Pac. 568, 573. 8. Action in personam.-An action for specific performance of a contract to convey real estate is one in personam: Silver Camp Mining Co. v. Dickert, 31 Mont. 488, 78 Pac. 967, 67 L. R. A. 940, 3 Am. & Eng. Ann. Cas. 1000; Close v. Wheaton, 65 Kan. 830, 70 Pac. 891. 9. Right, when negatived by the bill itself. Where the complaint affirma tively shows that the defendant is unknown to plaintiff, the right to specific relief is negatived by the bill itself: Bell v. Bank of California, 153 Cal. 234, 239, 94 Pac. 889, citing Columbine v. Chichester, 2 Phila. 27; Roanoke St. R. Co. v. Hicks, 96 Va. 510, 32 S. E. 295. 10. Joinder with action for damages. -The distinction in the English courts between an equitable action for specific performance and an action for damages triable only in a court of law is generally abolished by statute. Under the code, the plaintiff may join an action for specific performance with an action for damages upon the principle that he is entitled to relief in damages where the specific relief can not be granted: Huey v. Starr, 79 Kan. 781, 101 Pac. 1075, 104 Pac. 1135, citing Civ. Code, § 10, Gen. Stats. 1901, § 4438; Henry v. McKittrick, 42 Kan. 485, 22 Pac. 576. 11. Essential averments.-Under section 3391 of the Civil Code of California, the complaint in an action by a vendor against a vendee for the specific performance of an executory agreement for the sale of land, must affirmatively show, first, that the vendee has received an adequate consideration for the contract, and, second, that the contract is, as to him, just and reasonable. Where the complaint is lacking in these essentials it is insufficient: White v. Sage, 139 Cal. 613, 87 Pac. 193. 12. Complaint deficient in essential averments.-A complaint in an action to enforce specific performance of contract by the vendor in an executory agreement for the sale of land, is insufficient where there is no allegation whatever as to the value of the land, nor any averment that the price was adequate or in fair proportion to the value of the land, nor that the defendant ever had possession of the land, nor of any other facts going to show that the consideration of the contract of the defendant to buy the land was adequate, or that, as to him, it was just and reasonable. court of equity can not enforce specific performance where the complaint is lacking in these essentials: White V. Sage, 149 Cal. 613, 87 Pac. 193. A 13. Adequate consideration must be shown.-In an action for the specific performance of a contract for the sale of lands, it is necessary to allege and show to the court an adequate consid eration for the performance of the contract sought to be enforced: Nicholson v. Tarpey, 70 Cal. 608, 12 Pac. 778; Arguello v. Bours, 67 Cal. 447, 8 Pac. 49; Windsor v. Miner, 124 Cal. 492, 57 Pac. 386; Kiger v. McCarthy Co., 10 Cal. App. 308, 101 Pac. 928, 929. 14. Specific performance will not be decreed under section 3391 of the California Civil Code unless there is adequate consideration: Morrill v. Everson, 77 Cal. 114, 19 Pac. 190; Flood v. Templeton, 148 Cal. 374, 83 Pac. 148. 15. A complaint to enforce specifically a contract for the purchase of real estate, but which fails to allege adequacy of consideration for the purchase, may nevertheless be deemed good as an action for damages for the breach of the contract set forth in the complaint, and the full relief sought, except specific performance, may be awarded thereunder: Kiger v. McCarthy Co., 10 Cal. App. 308, 101 Pac. 928, 929. 16. Distinction as between executed and executory contracts.-A distinction as to the rule is made between executed and executory contracts. Where the parties to an executed contract have knowingly and deliberately fixed upon the price, however great or small, there is no occasion for interference by a court; for owners have the right to sell their property for what they please, and purchasers have a right to pay what they please: Harris v. Tyson, 24 Pa. 347, 64 Am. Dec. 661; Davidson v. Little, 22 Pa. 245, 247, 60 Am. Dec. 81. 17. Contracts must be equitable.-Contracts perfectly valid, free from fraud or mistake, may, nevertheless, be denied specific performance, if harsh, unjust, and unfair. And this doctrine applies equally to vendor and vendee: White v. Sage, 149 Cal. 613, 87 Pac. 193; Cummings v. Roeth, 10 Cal. App. 144, 101 Pac. 434, 437. 18. Fairness of contract must affirmatively appear.-In a suit for specific performance, it must be affirmatively shown that the contract is fair and just, and that it would not be inequitable to enforce it: Agard v. Valencia, 39 Cal. 292, 302; Newman v. Freitas, 129 Cal. 283, 288, 61 Pac. 907, 50 L. R. A. 548; Sharp v. Bowie, 142 Cal. 462, 467, 76 Pac. 62. 19. A complaint for specific performance, in order to make out a case good as against general demurrer, must state facts from which the court may determine that the consideration is adequate, and that the contract is as to the defendant just and reasonable: Herzog v. Atchison etc. R. Co., 153 Cal. 496, 501, 95 Pac. 898, citing Cal. Civ. Code. § 3391. See Agard v. Valencia, 39 Cal. 292. 20. It is incumbent upon the plaintiff, under the rule that in a suit for specific performance it must be affirmatively shown that the contract is fair and just, to state such facts as will enable the court to decide whether the contract is of such a character that it would not be inequitable to enforce it: Herzog v. Atchison etc. R. Co., 153 Cal. 496, 95 Pac. 898; White v. Sage, 149 Cal. 613, 87 Pac. 193; Flood v. Templeton, 148 Cal. 374, 83 Pac. 148; Stiles v. Cain, 134 Cal. 170, 66 Pac. 231; Prince v. Lamb, 128 Cal. 120, 60 Pac. 689; Windsor v. Miner, 124 Cal. 492, 57 Pac. 386; Morrill v. Everson, 77 Cal. 114, 19 Pac. 190; Nicholson v. Tarpey, 70 Cal. 608, 12 Pac. 778; Bruck v. Tucker, 42 Cal. 346. 21. A complaint looking to the enforcement of a bare legal right to have the defendant comply with the contract of a predecessor, without showing that the contract as originally made was fair and just as between the parties, or that it would be equitable to enforce it, and which fails to show that the recovery of damages for a breach of the contract would not be an adequate remedy, is insufficient for obtaining a decree in specific performance: Herzog v. Atchison etc. R. Co., 153 Cal. 496, 502, 95 Pac. 898. See Flood v. Templeton, 148 Cal. 374, 83 Pac. 148, and Senter v. Davis, 38 Cal. 450, as to necessity for showing that recovery of damages for a breach of contract would not be an adequate remedy, a condition which is essential to obtain specific performance or any other form of equitable relief. 22. A bill in equity to redeem personal property, held essentially a bill for specific performance: Angus v. Robinson's Admr., 62 Vt. 60, 19 Atl. 993; Bell v. Bank of California, 153 Cal. 234, 238, 94 Pac. 889. |