The appeal is from the judgment in favor of the plaintiff upon the judgment-roll alone.
The action is to recover five hundred dollars deposit paid by the assignor of the plaintiff on an agreement for the sale of land by the defendants. The amended complaint sets out the agreement in full. It was entered into the twenty-fifth day of January, 1902, between B.F. Lyttle, of Los Angeles, as the party of the first part, and Mrs. H.P. Zimmerman and H.P. Zimmerman, her husband, of the county of Riverside, the party of the second part. The party of the second part to the agreement, in consideration of fifty dollars paid to said party, "does hereby grant and give to said first party, and to his heirs and assigns, for the period of (7) seven days, the sole and exclusive right of purchasing the following lands and premises, represented to be owned in fee simple by said second party, and to be free and clear of all encumbrances, liens, taxes, assessments and defects whatsoever, and situated in said county of Riverside, and more particularly described as follows, to wit:" Then follows a description of the premises. "It is further agreed that upon the payment by the first party of the further sum of four hundred and fifty dollars ($450) this agreement shall be extended (3) three months from February 1st, 1902. . . . Upon the first party giving notice to the second party that he is willing to purchase said lands and premises, the second party shall, within thirty (30) days thereafter, furnish to first party for his examination
and approval or disapproval, a certificate of title of said lands and premises, made by some reputable abstract company of said county of Riverside, to be selected by the first party, and to be paid for by said second party. The first party shall have twenty days after the delivery of said certificate of title to him as aforesaid, within which to examine and approve or disapprove the title to said property as shown by said certificate, and the first party shall be the exclusive judge as to whether or not the title to said lands and premises is free and clear of and from all defects, liens, encumbrances, taxes and assessments whatsoever, and as to whether or not he is willing to accept the same. In the event said first party does not give notice that he will purchase said lands and premises as aforesaid, then the said sum of ($500) five hundred dollars, the consideration for this agreement, shall be forfeited to said second party, as liquidated damages; but if the said first party shall give such notice and shall accept said certificate of title, then said sum shall be credited on account of the purchase price of said lands and premises, and if the title to said lands and premises shall be rejected by first party, then the said sum shall be returned to the said party of the first part." It is alleged in the complaint that upon the execution of the agreement said Lyttle paid to the defendants the sum of fifty dollars, as in said agreement recited, and thereafter, on the thirtieth day of January, 1902, paid the further sum of four hundred and fifty dollars, and thereupon said agreement became and was extended for the period of three months from and after February 1, 1902. That on the tenth day of April, 1902, the said Lyttle, for a valuable consideration, granted, assigned, and transferred to one William F. West, all his right, title, interest, and estate in and to the said agreement, and on the twenty-fifth day of April, 1902, the said West, who was then and there the owner of the interest and the estate of said B.F. Lyttle, as aforesaid, duly notified the said defendants that he was willing to purchase the lands and premises described in said agreement, and for them to furnish to him for his examination and approval or disapproval a certificate of title to said lands and premises, to be made by the Riverside Abstract Company. Thereafter, on the sixth day of May, 1902, the said defendants furnished to said William F. West the said certificate of title made by said abstract
company, and that on the twelfth day of May, 1902, the said William F. West, for a valuable consideration, granted, assigned, and transferred to the plaintiff all his right, title, interest, and estate in and to the said agreement, and that the plaintiff is the owner and holder of all the said interest and estate. That thereafter, on May 26, 1902, the plaintiff duly notified said defendants that he rejected and disapproved of the title to said lands and premises as shown by said certificate, and that he refused to accept said certificate of title, or said title, and disapproved the same, and thereupon on said day demanded of said defendants, and each of them, that they pay and return to him the said sum of five hundred dollars so deposited, as aforesaid, but that the said defendants then and there refused and still refuse to pay the said sum, or any part thereof, and that the same is due and owing from said defendants to this plaintiff, together with interest thereon from the twentieth day of May, 1902.
Defendants demurred to the amended complaint upon the ground that it does not state facts sufficient to constitute a cause of action. This demurrer being overruled they answered the same. The findings of the court are substantially as the facts are alleged in the amended complaint. It is further found that defendants, upon the completion of the certificate of title requested by West, "knowing that said West had succeeded by assignment to the interest and estate of said Lyttle, in the said agreement as aforesaid, forwarded the said certificate of title by mail to said West, addressed to him at the said city of Los Angeles, state of California," but that the said West did not receive the same until the sixth day of May, 1902, and that within twenty days after the receipt and delivery of said certificate, as aforesaid, the plaintiff rejected the title to said lands and premises and disapproved of the same, and personally notified the defendants thereof.
The main contention on the part of the appellants is, that the rejection of the title and the demand for the return of the five hundred dollars could be made by one person only — to wit, B.F. Lyttle. Counsel in his brief says: "By the specific terms of the contract Lyttle was made the `exclusive judge' as to whether or not the title was clear, and as to whether or not he was willing to accept the same, and this exclusive right was not, and in the nature of things could not be, assignable without
of the consent of the appellants." This view was adopted by the Department in its opinion, and upon that ground the judgment of the court below reversed. A rehearing, however, was granted for the reason that this view of the nature of the contract in question by the Department was deemed to be erroneous.
The contract in question by its terms was made assignable, but without this provision it is an obligation of such a character that it may be transferred by the owner, or upon his death would pass to his representatives. (Civ. Code, sec. 954) "A right arising out of an obligation is the property of the person to whom it is due, and it may be transferred as such." (Civ. Code, sec. 1458) The agreement, it will be seen, runs to the first party, his heirs and assigns, but it is contended by the appellant that the portion conferring the right to pass upon the title is personal in its nature and is limited to Mr. Lyttle himself. There is nothing in the nature of the contract to justify this assumption. Suppose Mr. Lyttle had died.
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The appeal is from the judgment in favor of the plaintiff upon the judgment-roll alone.
The action is to recover five hundred dollars deposit paid by the assignor of the plaintiff on an agreement for the sale of land by the defendants. The amended complaint sets out the agreement in full. It was entered into the twenty-fifth day of January, 1902, between B.F. Lyttle, of Los Angeles, as the party of the first part, and Mrs. H.P. Zimmerman and H.P. Zimmerman, her husband, of the county of Riverside, the party of the second part. The party of the second part to the agreement, in consideration of fifty dollars paid to said party, "does hereby grant and give to said first party, and to his heirs and assigns, for the period of (7) seven days, the sole and exclusive right of purchasing the following lands and premises, represented to be owned in fee simple by said second party, and to be free and clear of all encumbrances, liens, taxes, assessments and defects whatsoever, and situated in said county of Riverside, and more particularly described as follows, to wit:" Then follows a description of the premises. "It is further agreed that upon the payment by the first party of the further sum of four hundred and fifty dollars ($450) this agreement shall be extended (3) three months from February 1st, 1902. . . . Upon the first party giving notice to the second party that he is willing to purchase said lands and premises, the second party shall, within thirty (30) days thereafter, furnish to first party for his examination
and approval or disapproval, a certificate of title of said lands and premises, made by some reputable abstract company of said county of Riverside, to be selected by the first party, and to be paid for by said second party. The first party shall have twenty days after the delivery of said certificate of title to him as aforesaid, within which to examine and approve or disapprove the title to said property as shown by said certificate, and the first party shall be the exclusive judge as to whether or not the title to said lands and premises is free and clear of and from all defects, liens, encumbrances, taxes and assessments whatsoever, and as to whether or not he is willing to accept the same. In the event said first party does not give notice that he will purchase said lands and premises as aforesaid, then the said sum of ($500) five hundred dollars, the consideration for this agreement, shall be forfeited to said second party, as liquidated damages; but if the said first party shall give such notice and shall accept said certificate of title, then said sum shall be credited on account of the purchase price of said lands and premises, and if the title to said lands and premises shall be rejected by first party, then the said sum shall be returned to the said party of the first part." It is alleged in the complaint that upon the execution of the agreement said Lyttle paid to the defendants the sum of fifty dollars, as in said agreement recited, and thereafter, on the thirtieth day of January, 1902, paid the further sum of four hundred and fifty dollars, and thereupon said agreement became and was extended for the period of three months from and after February 1, 1902. That on the tenth day of April, 1902, the said Lyttle, for a valuable consideration, granted, assigned, and transferred to one William F. West, all his right, title, interest, and estate in and to the said agreement, and on the twenty-fifth day of April, 1902, the said West, who was then and there the owner of the interest and the estate of said B.F. Lyttle, as aforesaid, duly notified the said defendants that he was willing to purchase the lands and premises described in said agreement, and for them to furnish to him for his examination and approval or disapproval a certificate of title to said lands and premises, to be made by the Riverside Abstract Company. Thereafter, on the sixth day of May, 1902, the said defendants furnished to said William F. West the said certificate of title made by said abstract
company, and that on the twelfth day of May, 1902, the said William F. West, for a valuable consideration, granted, assigned, and transferred to the plaintiff all his right, title, interest, and estate in and to the said agreement, and that the plaintiff is the owner and holder of all the said interest and estate. That thereafter, on May 26, 1902, the plaintiff duly notified said defendants that he rejected and disapproved of the title to said lands and premises as shown by said certificate, and that he refused to accept said certificate of title, or said title, and disapproved the same, and thereupon on said day demanded of said defendants, and each of them, that they pay and return to him the said sum of five hundred dollars so deposited, as aforesaid, but that the said defendants then and there refused and still refuse to pay the said sum, or any part thereof, and that the same is due and owing from said defendants to this plaintiff, together with interest thereon from the twentieth day of May, 1902.
Defendants demurred to the amended complaint upon the ground that it does not state facts sufficient to constitute a cause of action. This demurrer being overruled they answered the same. The findings of the court are substantially as the facts are alleged in the amended complaint. It is further found that defendants, upon the completion of the certificate of title requested by West, "knowing that said West had succeeded by assignment to the interest and estate of said Lyttle, in the said agreement as aforesaid, forwarded the said certificate of title by mail to said West, addressed to him at the said city of Los Angeles, state of California," but that the said West did not receive the same until the sixth day of May, 1902, and that within twenty days after the receipt and delivery of said certificate, as aforesaid, the plaintiff rejected the title to said lands and premises and disapproved of the same, and personally notified the defendants thereof.
The main contention on the part of the appellants is, that the rejection of the title and the demand for the return of the five hundred dollars could be made by one person only — to wit, B.F. Lyttle. Counsel in his brief says: "By the specific terms of the contract Lyttle was made the `exclusive judge' as to whether or not the title was clear, and as to whether or not he was willing to accept the same, and this exclusive right was not, and in the nature of things could not be, assignable without
of the consent of the appellants." This view was adopted by the Department in its opinion, and upon that ground the judgment of the court below reversed. A rehearing, however, was granted for the reason that this view of the nature of the contract in question by the Department was deemed to be erroneous.
The contract in question by its terms was made assignable, but without this provision it is an obligation of such a character that it may be transferred by the owner, or upon his death would pass to his representatives. (Civ. Code, sec. 954) "A right arising out of an obligation is the property of the person to whom it is due, and it may be transferred as such." (Civ. Code, sec. 1458) The agreement, it will be seen, runs to the first party, his heirs and assigns, but it is contended by the appellant that the portion conferring the right to pass upon the title is personal in its nature and is limited to Mr. Lyttle himself. There is nothing in the nature of the contract to justify this assumption. Suppose Mr. Lyttle had died. It would hardly be contended that the contract and every portion of it, with all the benefits conferred therein, would not have succeeded to and been vested in his legal representative. There is nothing in the nature of the transaction or in the terms of the contract to justify the assumption that any peculiar trust or confidence was reposed in Mr. Lyttle alone, or that his successor in interest would not be as capable of passing on the title and governed by like fairness and good faith in the matter as he would. In La Rue v. Groezinger, 84 Cal. 281,1 it is said: "And while it is to be conceded that men have perfect liberty to contract with whom they choose, and to exclude the idea of performance by another, yet in the absence of anything indicating such an intention we do not think that the court should indulge in speculation as to possible prejudice or fancied preference. It should not be assumed that the parties were influenced by unusual or conjectural motives merely because some men might be so affected under similar circumstances." And again, "if the language [of the contract] does not exclude the idea of performance by another, and the nature of the thing contracted for or the circumstances of the case do not show that the skill, credit, or other personal quality or circumstance of the party was a distinctive
characteristic of the thing stipulated for, or a material inducement to the contract, then the contract is assignable." InRued v. Cooper, 109 Cal. 682, it is said: "Assignability of things in action is now the rule; non-assignability, the exception; and this exception is confined to wrongs done to the person, the reputation, or the feelings of the injured party, and to contracts of a purely personal nature, like promises of marriage." The complaint alleges that the court finds that the agreement to purchase was for a valuable consideration assigned by Lyttle. This means not assigned in part only, but as a whole, and it is an important portion of the agreement that the purchaser had the right to pass upon the title. If by the agreement, as contemplated, the purchaser had the right, for value, to assign the contract, as he clearly had in this case, it would be a strange condition of things that his assignee, after paying full value, should still be at the mercy of the assignor in reference to this portion of the contract — to wit, the title of the premises in question. But the defendants themselves evidently did not understand the contract to mean what is contended for by their counsel on the appeal. They understood that the assignment by Lyttle to West, of which they had notice, carried with it all the right, title, and interest of every nature formerly held by Lyttle, and it is said in the finding of the court that "said defendants, knowing that said West had succeeded by assignment to the interest and estate of said Lyttle, in the said agreement, as aforesaid, forwarded the said certificate of title by mail to said West, addressed to him at the said city of Los Angeles." Said West, about the time of its reception, had assigned the said contract with all the right and title pertaining thereto to the plaintiff. The defendants are therefore estopped to deny the assignability of the particular stipulation in reference to passing upon the title, as well as the other portions of the contract in question. (Hannah v.Wahlberg, 128 Cal. 407.)
It is quite true, as claimed by appellant, that the right conferred upon the purchaser to pass upon the title does not imply that he thereby possessed the arbitrary right to unreasonably and in bad faith reject the title, but it will not be presumed that the plaintiff in this case acted in bad faith in rejecting the title, but that he did so because it was defective and not marketable. The answer of defendants does
not allege that the title was perfect, or good or marketable; nor is it anywhere intimated that the plaintiff, in rejecting the same, was not justified in doing so, or that he acted in bad faith; and it is alleged and the court finds that within twenty days after the receipt and delivery of the said certificate of title the plaintiff rejected the title to said lands and premises and disapproved of the same, and on said day personally notified defendants thereof. This was in strict compliance with the terms of the contract, and it results that the plaintiff was thereupon, as the successor of Lyttle, entitled to recover the sum deposited.
Judgment affirmed.
Shaw, J., Angellotti, J., Lorigan, J., and Beatty, C.J., concurred.
We dissent, and adhere to the opinion heretofore delivered in Department. McFarland, J., Henshaw, J.
The following is the opinion delivered and approved in Department Two on the twelfth day of February, 1904. —
1 18 Am. St. Rep. 179.