Magee v. McManus

Citations

• 70 Cal. 553
• 12 P. 451
• 1886 Cal. LEXIS 844

Syllabus

<p>Specific Performance—Contract must be Definite and Certain— Evidence. — The specific performance of a contract cannot be had unless the thing agreed to be done is definite and certain in its terms and in itself, and the party claiming performance establishes by clear and satisfactory proof the existence of the contract as he alleges it.</p> <p>Id.—Contract for Indemnity —Agreement to Execute Note and Mortgage. — The action was brought to procure the specific performance of a parol contract. The complaint alleged that the plaintiff, having become liable as the accommodation surety for the defendant on two promissory notes, hearing a given rate of interest, entered into a contract with her whereby she promised, in consideration of his joining with her in the execution of a new note for six hundred dollars, payable six months after date, at a different rate of interest, to secure him against liability on the three notes by giving him her individual note secured by a mortgage upon her homestead property, the note to he made payable to him at the same time as the six-hnndred-dollar note, in a sum equal to the whole amount then due on the three notes, and to bear the same rate of interest, and the mortgage to be made in such an amount as would secure him against any liability by reason of his becoming her surety. The court found the contract as alleged in the complaint, except that it was made in consideration of the plaintiff becoming surety on a note payable one year after date. Held, that specific performance of the contract could not he had, — 1. Because the contract as alleged in the complaint and as found by the court differed in the consideration; and 2. Because the contract was indefinite and uncertain both as to the time of payment of the note and mortgage, and as to the amount for which the mortgage was to he given, and the rate of interest on the note.</p> <p>Id. —Waiver of Right to Specific Performance. —The plaintiff performed his part of the contract, hut