Schmidt v. City of Millbrae

277 P.2d 855, 129 Cal. App. 2d 791, 1954 Cal. App. LEXIS 1674

Opinions

NOURSE, P. J.

Plaintiffs sued to cancel a deed to described real property within the corporate limits of the defendant city. The complaint alleged, and the evidence supported the allegation, that plaintiff Schmidt had an oral agreement with the mayor of the city in which Schmidt executed and delivered to the mayor a deed to the disputed property with the oral agreement between them that the property would be used solely for a site for a new city hall. The city council accepted the deed and caused to be erected on the site a sign reading: ‘1 Site of New Millbrae City Hall. ’ ’ This remained on the property for two years, when the city removed it and repudiated the agreement.

On the trial the plaintiffs fully proved all these facts; the city did not controvert them in any particular, but relied wholly on the defense that the mayor’s agreement, not being a legal contract on the part of the city, was not an enforceable contract.

There is no answer to the statement of the trial judge made at the conclusion of the hearing: “I suspect that the Plaintiff was rooked, but legally I can’t do anything about it.”

There can he no controversy over the law of the case as applicable to these facts. The contract relied on was oral, and made by one member of the city council only. There is no evidence that it was approved by a majority of the council or that the acceptance of the deed was based on the conditions advocated by appellants.

Manifestly it was a dishonorable and dishonest act on the part of the council to repudiate the conditions under which the deed was executed and delivered to the city, and in all fairness the property should have been restored to the grantors.

However the law is settled that “A grant cannot be delivered to the grantee conditionally. ’ ’ (Civ. Code, § 1056; Security-First Nat. Bank v. Leatart, 75 Cal.App.2d 211, 214 [170 P.2d 687].)

Judgment affirmed.

Kaufman, J., concurred.