Slankard v. Wagnon (181 Cal. 135, 1919)

MELVIN, J.

Plaintiff sued successfully for damages on account of a breach of a certain contract whereby defendant had promised to indemnify him for a shortage in the acreage of a tract of land in Tehama County sold by Mr. Wagnon to plaintiff and conveyed on defendant’s account to Mr. Slankard by one H. G. Stevenson.

There is little conflict with reference to the facts, which are, substantially, as follows:

Defendant had a contract for the purchase of a tract of 515 acres from Mr. Stevenson. On August 2, 1913, the parties hereto entered into a written agreement for the purchase by plaintiff of a portion of the 515 acres and in the fulfillment of that contract defendant Wagnon caused the owner to make a deed to plaintiff Slankard. The property was described in said deed as follows:

“Lots 1, 2, 3 and 4 of Block 31; Lots 5, 6, 7 and 8 of Block 30; Lots 5, 6, 7 and 8 of Block 29; Lots 1, 2, 3 and 4 of Block 32; and the westerly 456 feet of lots 6 and 7 of Block 28, and the westerly 456 feet of lots 2, 3, 6 and 7 of Block 33, as the said lots and block are laid out, designated and delineated upon a certain map entitled ‘Richfield Colony Tehama County,’ surveyed by H. C. Shackelford, licensed surveyor, filed in the County Recorder’s office, of Tehama County February 6th, 1899. " Containing 215 acres, more or less.”

Before closing the transaction of the purchase of the land from Stevenson, the defendant engaged a surveyor to run the lines of the property. Owing to the shortness of time in which he was required to report, the surveyor did not promise absolute accuracy, but agreed to do his best. He reported, soon afterward, that the property described in the contract with Stevenson was fifty-nine acres short of the amount agreed to be conveyed. Believing that the laúd conveyed to Slankard was short of the acreage specified in the deed, Mr. Wagnon sought an interview with Mr. Slankard. Their negotiations at that time resulted in the written agreement upon which this action was subsequently based. That contract, dated August 31, 1914, recites that Wagnon had agreed to convey to Slankard the most westerly 215 acres of the land which Stevenson had promised to sell to the former; that Wagnon had caused Stevenson to give the former’s grantee a deed which was supposed to convey the most westerly 215 acres of said land; that subsequently it appeared that the land described in the deed did not contain 215 acres; that Wagnon, not having received a deed from Stevenson, was unable then to .make good the shortage; that a suit was pending in. the superior court by Wagnon against Stevenson and wife for the purpose of compelling conveyance of all the land described in the contract of May 22, 1913, between said Stevenson and said Wagnon; and that Wagnon desired “to secure said G. F. Slankard in the conveyance of said remaining fifty: nine (59) acres of land in case he, the said William B. Wag-non, obtains the same from said H. G. Stevenson, or in lieu thereof to properly indemnify said G. F. Slankard for such shortage.” In consideration of these'premises and of certain covenants of the party of the second part (Slankard) and for other good and valuable considerations, the party of the first part (Wagnon) covenanted and agreed in the event of full recovery in his action against the Stevensons to convey to Slankard within two months “the remaining fifty-nine (59) acres of the land described and referred to in said contract of August 2, 1913, between said William B. Wagnon and said G. F. Slankard, said land to be free and clear from all encumbrances or liens of any nature whatsoever,” or in lieu thereof certain described lots situated in the tract known as the Coming Irrigated Farms.

The party of the second part (Slankard), in consideration of the premises, of the covenants of the first party and the performance thereof, and for other good and valuable considerations, agreed to forbear from bringing any suit upon his previous contract with Wagnon or for the recovery of the lands therein described or for the moneys therein specified until two months after the entry of judgment in the suit by Wagnon against the Stevensons.

It was also agreed that in the event of a compromise of that litigation, William B. Wagnon would immediately convey to G. F. Slankárd the fifty-nine acres “constituting the remainder of the land referred to in said contract” of August 2, 1913, or in lieu thereof the specified lots in Corning Irrigated Farms.

There was a settlement of the lawsuit of Wagnon against Stevenson and wife, but he refused to comply with the terms of the agreement of August 31, 1914. The result was this suit, based upon the alleged breach of that agreement by the -defendant.

By his answer defendant admitted the execution of the agreement of August 31, 1914, but asserted that the information upon which he relied in making that contract was erroneous. It was averred in the answer that plaintiff did receive and then held 215 acres of land—all that was called for in the deed from Stevenson. It was further alleged that the deed from Stevenson was a warranty deed; that it was accepted by plaintiff in full performance of .defendant’s contract of sale, and that plaintiff’s remedy, if the actual land received by him was less than that for which the deed was given, was against Stevenson. There was no prayer for the cancellation of the agreement of August 31, 1914, nor for its amendment.

Upon the issues thus joined the cause was tried before the court, without a jury, and judgment for plaintiff in the sum of $4,987.65, with interest, was given.

The appellant denies that there was sufficient evidence to support four certain findings. Another finding is attacked as uncertain and argumentative and the evidence in support of it is declared to be inadmissible, but appellant contends that, even if it was properly admitted, the conclusion drawn from it is erroneous. Error is also predicated upon the admission of testimony regarding offers of compromise and upon the court’s refusal of defendant’s request for permission to file a cross-complaint.

Finding No. 10, one of those attacked by appellant, was to the effect “that the property conveyed to plaintiff by the Stevenson deed was 44.24 acres short, and that plaintiff does not now hold any greater acreage than 170.76 acres.” The other questioned findings are of like import. The theory upon which these findings and, indeed, all the material ones were made may be best understood by reading the following paragraphs from the clear and logical opinion of Judge Ellison, who tried the case:

“From the testimony introduced and the measurements made by certain surveyors employed for that purpose, it must be held that the calls in the deed from Stevenson to the plaintiff, when measured out upon the ground, make an area of 215 acres, provided the section lines are where they locate them.

“If this were all of the case, it would seem that the defendant would be entitled to a judgment, but the fact, as disclosed by the evidence, is that before the plaintiff contracted to buy the 215 acres he was taken upon the ground by the defendant Wagnon, and' thereon the westerly boundary of the land which he contracted to sell to him was pointed out to him as being’ a fence running north and south. The land east of this north and south fence deeded to the plaintiff does not contain 215 acres.

“A plat of the subdivision showing the land described in the deed to the plaintiff, when placed upon the ground, would seem to run some distance westerly of this fence, to what is claimed to be the section lines. It is this land between the fence that was pointed out and the so-called location of the section lines that caused the dispute between the parties.

“It sufficiently appears from the testimony that at the time the deed was made to the plaintiff, and now, the land west of this fence, and between it and what is supposed to be the section lines, was' in the possession of other parties, and had been for a great many years, they claiming to be the owners thereof and that said fence was the-easterly boundary line of their lands.

“When the contract of August 31, 1914, was entered into it was clearly the-belief of both the plaintiff and defendant that the westerly boundary line of the land deeded to the plaintiff was this fence, and it was clearly their understanding that the land easterly of the fence deeded to the plaintiff contained 59 or thereabouts acres less than the amount agreed to be conveyed to him, to wit, 215 acres, and with this knowledge the contract of August 31, 1914, was entered into.

“It is now claimed by the defendant that as the calls in the plaintiff’s deed extend westerly from the fence far enough to make 215 acres that he has received from the defendant all that he was entitled to. But it was evidently not the intention of the parties in executing the contract of August 31, 1914, to put the plaintiff to the expense or trouble of bringing litigation against the occupants of the land west of the fence to recover the same. The defendant definitely contracted to convey to him fifty-nine acres more land than he had received, or in lieu thereof to convey him certain lots. He has done neither.

“ The rule is invoked that a party who buys land in the possession of another must ascertain the rights of the person in possession, or buys the land at his peril without making such investigation. But this rule is not applicable to this case, because the plaintiff was not informed that anyone was in possession of any part of the land that he was buying. In fact, no one was in possession, so far as the evidence shows, of any of the property east of the fence referred to, and no intimation was made to him that he was buying any land west of the fence, but the contrary was stated. Hence he was under no obligations to make any inquiries as to the ownership or possession of the lands lying west of the fence.

“Interpreted in the light of all the facts and circumstances of the case, the defendant’s contract with the plaintiff was to convey to him 215 acres lying easterly of the fence that was pointed out to him as the westerly boundary of the land that he was to buy, and it was not contemplated or expected that he should bring any suits to recover any lands lying west of said fence, or make any effort to take possession of the same. And it was in the light of this situation that the defendant agreed that upon the determination or compromise of the suit which he had brought against Mr. Stevenson he would make a conveyance to the plaintiff of fifty-nine acres of land, or in lieu thereof convey to him the lots in the Corning Irrigated Farms tract.

“The contract between the parties is in writing, and is supported by an adequate consideration, to wit, the mutual promises of the parties and the settlement of a controversy then existing between them as to the acreage the plaintiff was to receive compared with the acreage he had received, the consideration on the part of the plaintiff being' that he would forbear to bring any suit against the defendant until the final determination or compromise of the suit of Wagnon against Stevenson. This the plaintiff has done, as is alleged in his complaint and admitted on the trial, and the contract, so far as he is concerned, is fully executed, and the defendant has received the consideration therefor, to wit, the forbearance to bring any suit. ’ ’

But it is earnestly asserted that the oral statements of defendant with reference to the location of the fence upon the westerly boundary of the land were not admissible because their effect was to vary by parol the terms of a written contract. These statements were not admitted, however, ,for any such purpose. It is to be remembered that this action was based not upon the original contract of sale, but upon the later compromise agreement. It was proper to show the circumstances attending, surrounding, or explaining its execution. There was, perhaps, a mutual mistake of both parties to the agreement regarding- the paper title—that is to say, the area included within the description in the deed; but there was no mistake about the land actually occupied by the plaintiff and the fact that it was far short of containing 215 acres. This shortage gives the reason for the contract of August 31, 1914. The oral testimony explains the intention