of certain described lands, and find a purchaser for the same, with a stipulation that if the said plaintiff should within ten days find a purchaser at a certain price per acre, that the defendant would sell and convey the same to such purchaser, and that plaintiff should have for his services all that should be obtained from such purchaser over said price per acre, it is not a contract for sale of land within the meaning of the Statute of Frauds, but is a mere contract of employment;176 and is revocable at any time.177 But it would seem that where a portion of the remuneration to be paid for such services should be a part of the land in question, it would be otherwise. In that case, the contract being oral, and no note or memorandum having been reduced to writing or signed by either party thereto, that portion stipulating for the transfer of land to the plaintiff is null and void by the eighth section of the statute concerning fraudulent conveyances, and that portion of the contract being void, the remaining portion could not be enforced.178 That the plaintiff executed the agreement is not essential.179 But whether equity will enforce the specific performance of a contract depends not upon the character of the property involved, as whether it be real or personal, but upon the inadequate remedy afforded by a recovery of damages in an action at law. 180 And where W. agreed orally to buy of G. a designated machine, worth three hundred and seventy-five dollars, and directed G. to forward the same, by the New York Central railroad, to one S., it was held that the sale was complete, and taken out of the Statute of Frauds, by delivery to said railroad company, and specific performance decreed in favor of the vendors. 181 If there be a variance between the written agreement and the true agreement, the difference should be clearly shown.182 § 2900. Part performance - plaintiff's title. A court will, under some circumstances, decree a specific performance, where 176 Heyn v. Phillips, 37 Cal. 529. 177 Brown v. Pforr, 38 Cal. 550. 178 Lexington v. Clark, 2 Vent. 223; Crawford v. Morrell, 8 Johns. 255; cited in Fuller v. Reed, 38 Cal. 99; Cloud v. Greasley, 125 III. 313. 179 Clasod v. Bailey, 14 Johns. 484; Worrall v. Munn, 5 N. Y. 229; 55 Am. Dec. 330. 180 Duff v. Fisher, 15 Cal. 375. 181 Glen v. Whitaker, 51 Barb. 451. 182 Coles v. Browne, 10 Barb. 526. Vol. II-51 there has been a part performance.183 The payment of part of the price is not such an act as that the rescission of the contract would be a fraud on the other party.184 If the plaintiff's title is defective, and it appears before decree or report that it can be perfected, the delay is compensated by charging the complainant with interest.185 A bill in equity, which states as the complainant's title, that he purchased under regular proceedings, and at an open and fair execution sale, a debt of two hundred and sixty thousand dollars for six hundred dollars, is not bad on demurrer.186 § 2901. Against a railroad company for a specific performance of an agreement to construct a farm crossing, and for damages. Form No. 657. [TITLE.] The plaintiff complains, and alleges: ........ day of.... I. That the defendant, on the 18.., had located its railroad, in part, upon the farm of the plaintiff, on which he lives, in the town of and on said day he agreed with it, by a writing, signed by both parties, to sell and convey to it the right of way across said farm for its railroad, for .... .... dollars, provided that, in case the construction of said railroad should require a fill across a certain meadow, on said farm, then a farm-crossing should be made and left, either over said embankment or through the same, and under the tracks. II. That on the .... day of ......... 18.., the plaintiff received from the defendant the said dollars, and executed and delivered to it a deed of said right of way, containing no reference to any agreement as to a farmcrossing, which deed was recorded on the .............. day of 18.., in the office of the county recorder of county, in book ... of Deeds. 183 Brashier v. Gratz, 6 Wheat. 528; Welch v. Whelpley, 62 Mich. 65; 4 Am. St. Rep. 810. 184 Story's Eq., §§ 760, 761; Sugd. on Vend. 112, § 3; Ex parte Storer, Davies, 294; Haight v. Child, 34 Barb. 186; Purcell v. Miner, 4 Wall. 513. 185 Clute v. Robinson, 2 Johns. 595; Pierce v. Nichols, 1 Paige Ch. 244; Reformed Dutch Church v. Mott, 7 id. 77; 32 Am. Dec. 613: Viele v. Troy & Boston R. R. Co., 21 Barb. 381; affirmed, 20 N. Y. 184; Cleveland v. Burrill, 25 Barb. 532. 186 Erwin v. Parham, 12 How. (U. S.) 197. ! day of .... III. That on or about the 18.., the defendant constructed its railroad across said farm, and made a fill across said meadow, fifteen feet high, but left no farm-crossing either over or through the embankment thus constructed. IV. That the plaintiff, on said day, requested the defendant to make or leave such a crossing, but the defendant, through John Doe, its superintendent, refused so to do. V. That for want of such a crossing, the plaintiff has ever since said day been forced to drive his cattle daily, in going from his barn to the main part of his farm, around the side of said valley, and a half mile out of the direct and accustomed way, whereby he has been damaged to the amount of dollars. VI. That unless a crossing is constructed as agreed, the plaintiff's farm can not be conveniently used as such, and will be irreparably injured. Wherefore the plaintiff prays for a judgment for the immediate construction of a proper farm crossing, as agreed, and for damages in the sum of dollars.187 .... 187 This form is taken, in substance, from those adopted and approved by the judges of the Superior Court of Connecticut. CHAPTER VII. USURPATION OF OFFICE. § 2902. By the people, etc., on the complaint of a private party. Form No. 658. The People of the State of Cali fornia, on the complaint of A. B., Plaintiffs, against C. D., Defendant. The people of the state of California, by E. F., their attorneygeneral, upon the information and complaint of said A. B., complain of the said defendant, and allege: I. That on the ... .... day of .... ...., an election was held in the . 18.., at [pre cinct, district, or county] of this state, for the office of [here designate the office], for the term of the ... ........ day of II. That at the said election one 18.. greatest number of legal votes for the said office. years, from defendant usurped the said office, and has ever since withheld the same from the said ..... Wherefore the plaintiff demands judgment: 1. That the defendant is not entitled to the said office, and that he be ousted therefrom. 2. That the said ..... is entitled to said office, and that he be put in possession of the same.1 § 2903. Action in general. Actions for the usurpation of any office, franchise, or liberty, or on the part of a corporation for the usurpation of a franchise not authorized by law, are 1 For mode of proceeding in California to contest elections, see Cal. Code Civ. Pro., §§ 1111-1127. And for proceedings to remove civil officers for violation of official duties, see Stats. of Cal. 1873-4, p. 911; Hitt. Codes and Stats., par. 10,810. 8 brought by the attorney-general.2 He may set forth in the complaint the name of the person rightfully entitled to the office with a statement of his right thereto.3 It is a remedy provided by the Code, though the distinction between writs of mandate and quo warranto are still recognized. It is the proper remedy to try the right to an office. The contestant in a proceeding to contest an election can not take judgment by default; the allegations must be proved. Where a city charter provides that the common council shall judge of the qualifications, elections, and returns of their own members, the council possesses exclusive authority to pass on the subject, and courts have no jurisdiction to inquire into those matters. Where a failure to qualify works a forfeiture of the office, quo warranto is the ancient and appropriate and usually the exclusive method of judicially ascertaining the fact and ejecting an unlawful incumbent. In such actions the court may not only determine the right of the defendant, but of the relator also; and if it determine in favor of the relator, may render judgment that the defendant forthwith deliver up to the relator the office.10 A person holding a certificate of election without legal title to the office is an intruder. And the action lies against an intruder into the office created by the charter of a corporation.12 A certificate of election is not necessary to enable a party claiming to have been elected to bring this suit.13 Where several claim an office, their rights may be determined in a single action.14 For usurpation of, intrusion into or unlawful holding any 25 Mass. 230; 4 Am. Dec. 50; State v. Anderson, 45 Ohio St. 196; Territory v. Lockwood, 3 Wall. 336. Cal. Code Civ. Pro., § 804. 4 People v. Olds, 3 Cal. 175. Id. 177; 58 Am. Dec. 398; see People v. Dashaway Assn., 84 Cal. 114. 6 People v. Scannell, 7 Cal. 439. 7 Keller v. Chapman, 34 Cal. 635; Searcy v. Grow, 15 id. 117; Dorsey v. Barry, 24 id. 449. 8 People v. Metzker, 47 Cal. 524. 9 Hyde v. State, 52 Miss. 665. 10 People v. Banvard, 27 Cal. 470. 11 People v. Jones, 20 Cal. 50. 12 People v. Kipp, 4 Cow. 382; People v. Tibbets, id. 358. 18 Magee v. Board of Supervisors of Calaveras Co., 10 Cal. 376. 14 Cal. Code Civ. Pro., § 808. |
